Jeffrey Wheeler v. Civil Service Commission (SPR 20250014)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 9, 2025 SPR25/0014 Christopher Bowman Records Access Officer Massachusetts Civil Service Commission 100 Cambridge Street, Suite 200 Boston, MA 02114 Dear Mr. Bowman: On January 2, 2025, this office received your petition on behalf of the Massachusetts Civil Service Commission (Commission) requesting permission to assess fees for time spent segregating and redacting responsive records and seeking an extension of time to produce records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, it is my understanding that the Commission furnished a copy of the petition to the requestor, Jeffrey Wheeler. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). In a voicemail message dated December 19, 2024, Mr. Wheeler requested “[m]y documents, my CD, everything.” Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Christopher Bowman SPR25/0014 Page 2 January 9, 2025 G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) must provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Current Petition In its petition, the Commission requests “to enlarge the time for production of records requested by Mr. Jeffrey Wheeler in various voicemails left for a CSC Commissioner in late December 2024[,]” and provides the following information in support of its request: [T]he Commission has retrieved from off-site storage the voluminous record, which includes digital recordings of two days (8 hours total) of hearings; 21 exhibits, including hundreds of pages and recordings of phone messages and investigative interviews; proposed decisions; and other non-exhibit records that comprise the remainder of the case file. . . . [A]t this time, for the reasons stated in the CSC’s fee petition, the CSC has determined that the entire extensive box of materials must be reviewed by counsel for compliance with various public records law exemptions – most significantly, exemptions (c), (d), (f), and (o). In a telephone conversation on January 8, 2025, the Commission indicated that it is seeking the maximum number of days allowed under the law. In light of the need to collect, segregate and examine the records, and the scope of redaction required to permit unlawful disclosure, the Commission has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(ii). The Commission is granted an extension of 20 business days. Petition to assess fees – Agencies A fee shall not assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records (Supervisor) under a petition. G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4).

Christopher Bowman SPR25/0014 Page 3 January 9, 2025 In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). Current Petition In its petition, the Commission seeks to assess fees for time spent segregating and redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). In support of its request, the Commission provides the following information:

Christopher Bowman SPR25/0014 Page 4 January 9, 2025 [B]ased on an initial, cursory review of the record, there are likely dozens, if not hundreds, of instances where redactions, if logistically possible, will need to be made to both the hard copy records and digital recordings, as they contain materials or data relating to specifically named individuals, the disclosure of which may constitute an unwarranted invasion of those individuals’ personal privacy. G. L. c. 4, § 7(26)(c). . . . Additionally, exemptions (f) and (o) in the public records law may be applicable in this case. For example, there are many references, in the hard copy documents and digital recordings to a Department of Correction employee who made allegations of misconduct against [an identified individual], prompting [her] to obtain a restraining order against [an identified individual]. Based on the information provided in its fee petition, I find the Commission has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without segregation or redaction. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, I find the Commission has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the Commission may assess a fee for segregation and redaction. Further, I encourage the parties to communicate further to enable the Commission to provide records in an efficient and affordable manner. Please note, Mr. Wheeler has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10(c), 10(d) (IV) (4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Jeffrey Wheeler