Public Records Specialists v. State 911 Department (SPR 20250225)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 31, 2025 SPR25/0225 Dennis J. Kirwan, Esq. General Counsel State 911 Department 151 Campanelli Drive, Suite A Middleborough, MA 02346 Dear Attorney Kirwan: On January 24, 2025, this office received your petition on behalf of the State 911 Department (Department) seeking an extension of time to produce records, permission to charge for time spent segregating or redacting responsive records, and relief from the obligation to produce responsive 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, I understand that the Department furnished a copy of this petition to the requestor, Grant Watch (requestor). G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On October 16, 2024, the requestor sought 23 categories of records, including the following: 1. All FY2022, FY2023, FY2024 and FY2025 Support and Incentive Grant reimbursement requests that were rejected or reduced from the original requested amount; and 2. All FY2022, FY2023, FY2024 and FY2025 Regional Public Safety Answering Point and Regional Secondary Public Safety Answering Point and Regional Emergency Communication Center Development Grant (together “the Development Grants”) reimbursement requests that were rejected or reduced from the original requested amount. Previous Appeal This request was the subject of a previous appeal. See SPR24/3289 Determination of the Supervisor of Records (December 16, 2024). In my December 16th determination, I ordered the Department to provide the requestor with a supplemental response. Subsequently, the Department submitted the present petition. 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

Dennis J. Kirwan, Esq. SPR25/0225 Page 2 January 31, 2025 Petitions for an Extension of Time and Relief from the Obligation to Provide Records 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. 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) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(b). Request for Additional Time to Produce Responsive Records and for Relief In its petition, the Department “requests, pursuant to M.G.L. c. 66, § 10(c), ¶ 2, to be relieved of its obligation to provide additional documents responsive to the first two categories of records sought by Requester ... in its December 16, 2024 appeal, or, in the alternative, an extension of time to respond on a rolling basis over the period of 12 months.” The Department provides the following information in support of its requests: In FY 2024 alone, the finance department processed and approved grant reimbursement requests that amounted to well over $82,000,000.00. Grant Watch is requesting records contained within four complete grant application cycles. Over two hundred (200) PSAPs provide supporting documentation for grant reimbursement requests on a rolling basis throughout each fiscal year. To support

Dennis J. Kirwan, Esq. SPR25/0225 Page 3 January 31, 2025 the requested funding amount, these grant applications include payroll submissions for each telecommunicator (911 operator) along with personally identifiable information specific to the applicant’s personnel. Over the timeframe for the requested records, from FY 2022 through FY 2025, there are approximately 11,200 sets of documents. Therefore, these 11,200 records require comprehensive review by finance department personnel to both identify and segregate the responsive documents (e.g., those rejected or reduced from the original requested amount) and to apply the necessary exemptions as permitted under Massachusetts law. State 911 has calculated that this will necessitate over 2,800 hours of work, and only two members of its 7-person finance team will be capable of performing the tasks of identification and segregation. . . . State 911 is a small state agency of approximately 100 employees, only seven of whom are in the finance department, which would be the employees responsible for review of these 11,200 records. As noted above, only two of these seven employees are sufficiently experienced to identify and segregate the correct documents. Due to the critical role of the finance department has in fulfilling State 911’s responsibilities, responding to the Grant Watch request in the time provided in the public records law would, unquestionably, require State 911 to cease its operations. State 911 asks that you consider the Appeals Court’s recent decision in Friedman v. Division of Administrative Law Appeals, 103 Mass. App. Ct. 806, 807 (2024), which held that “the public records law does not require public agencies simply to provide the requested records no matter the burden imposed, nor does it require public agencies to shunt aside their principal public functions to do so. Rather, a rule of reason governs the obligation of public agencies both to respond and to provide records, and also the conduct of requestors of public documents.” (Emphasis added). State 911 has already devoted considerable resources to responding to Grant Watch’s request for records. In State 911’s initial production in response to Grant Watch’s request, the agency provided a voluminous amount of documents. The response was such that the attachments were required to be sent in eight separate e-mails. In regard to the above requests, the Department produced a detailed spreadsheet related to each such record, and, when appropriate, the reason for rejection or reduction sought. Moreover, Grant Watch sent a previous request to State 911, on October 10, 2024, seeking [three categories of records.] State 911 duly responded and provided the public records without seeking search and segregation fees. Petition to Assess Fees – Agencies 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 (Supervisor) under a petition under G. L. c. 66, § 10 (d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4).

Dennis J. Kirwan, Esq. SPR25/0225 Page 4 January 31, 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 an agency’s petition to allow the agency to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). The second prong of the test is whether the fee represents an actual and good faith representation by the agency 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; 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). Petition to Assess Fees In its petition, the Department requests to assess fees, and explains the following: As noted above, only trained personnel from our finance department would be able to search through individual records as requested and determine which records would be subject to the inquiry and make the appropriate redactions. All

Dennis J. Kirwan, Esq. SPR25/0225 Page 5 January 31, 2025 of these records include some form of personally identifiable information, such as name, home address, payroll information, deductions, and social security numbers. A fair and reasonable estimate of the amount of time to search, segregate and redact each set of records would be 15 minutes per set. Thus, the request would take 168,000 minutes for this process, or 2,800 hours of time. A fair and reasonable cost estimate, therefore, would be $69,900.00 (2,800 hrs – 4 = 2796 x $25. Per hr.). The lowest pay rate of personnel capable of performing any task related to the request exceeds $25.00 per hour. Copies of those records would additionally cost $.05 per page, which we would estimate as an additional $4,500.00. Thus, the total cost estimate for the requests related to Support and Incentive Grant reimbursement requests is $74,400.00. Commercial Purpose In its petition, the Department also argues the following: While the requester is anonymous, an internet search reveals that there is a commercial enterprise of the same name. The entity, Grant Watch, is in the business of posting and updating a repository of basic information on grants in a searchable database, which is available to customers who pay a substantial subscription fee ($18.00 weekly or $200.00 annually). The business is marketed towards non-profits, businesses, and individuals (not municipal or state agencies, such as PSAPs [Public Safety Answering Points]). All the information that Grant Watch would need to accomplish their business purpose is available publicly and was included in State 911’s response. Please be advised that the term “commercial purpose” as used in the Public Records Law shall mean: the sale or resale of any portion of the public record or the use of information from the public record to advance the requester’s strategic business interests in a manner that the requester can reasonably expect to make a profit, and shall not include gathering or reporting news or gathering information to promote citizen oversight or further the understanding of the operation or activities of government or for academic, scientific, journalistic or public research or education. G. L. c. 66, § 10(d)(ix). Conclusion The Department submitted the current petition on January 24, 2025, more than ten business days after receipt of the request. In light of the fact that the Department has not demonstrated it submitted a timely petition, an extension of time, permission to assess fees for segregation and redaction not required by law, and relief from the obligation to provide records cannot be granted. 950 C.M.R. 32.06(4)(d), (g).

Dennis J. Kirwan, Esq. SPR25/0225 Page 6 January 31, 2025 To the extent possible, the Department must provide responsive records on a rolling basis. Additionally, please be advised that this determination does not preclude the Department City from charging for segregation and redaction that is required by law under Exemption (a). Further, the Department and the requestor are advised that this office may deny an appeal from a requestor if, in the opinion of the Supervisor of Records, the request is made solely for a commercial purpose. See 950 C.M.R. 32.08(2)(b)(3). Sincerely, Manza Arthur Supervisor of Records cc: Grant Watch