Theodore J. Aleixo v. Human Resources Division (SPR 20250483)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 24, 2025 SPR25/0483 Michele M. Heffernan, Esq. General Counsel Human Resources Division 100 Cambridge Street, Suite 600 Boston, MA 02114 Dear Attorney Heffernan: On February 21, 2025, this office received your petition on behalf of the Human Resources (Division) seeking permission to charge for time spent segregating or redacting 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, it is my understanding that the Division furnished a copy of the petition to the requestor, Theodore J. Aleixo III. On February 6, 2025, Mr. Aleixo requested the following: [1] All emails sent or received by [an identified individual] from 10/1/2024 to 11/5/2024[;] [2] All emails sent or received by [an identified individual] from 5/1/2024 to 6/30/2024[;] [3] All emails sent or received by [an identified individual] from 11/1/2023 to 12/30/2023[;] [4] All emails sent or received by [an identified individual] from 12/10/2021 to 2/15/2022[;] [5] All emails sent or received by [an identified individual] from 12/10/2021 to 1/5/2021[.] On February 19, 2025, Mr. Aleixo sent a correspondence objecting to the Division’s petition. Petition to Assess Fees – Municipalities The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, 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

Michelle Heffernan SPR25/0483 Page 2 February 24, 2025 § 10(d)(iv). 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. 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). Municipalities may not assess a fee for the first 2 (two) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities 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. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). 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)(iii); 950 C.M.R. 32.06(4). Current Petition In its petition, the Division seeks permission to charge for time spent segregating or redacting responsive records. In support of its request, the Division provides the following information concerning anticipated redactions:

Michelle Heffernan SPR25/0483 Page 3 February 24, 2025 It is estimated that [an identified individual] sent/received approximately 6300 emails during the requested time periods; [an identified individual] sent/received approximately 3400 emails during the requested time period and [an identified individual] sent/received approximately 2300 emails during the requested period. Both [identified individuals] are attorneys for the Human Resources Division. As such, each email will have to be reviewed and redacted for confidential information, personnel information and attorney client privilege. [An identified individual] is a workers compensation adjustor and her emails will have to be reviewed and redacted for confidential and personal information, including employee medical records. We believe exemption (c) as well as attorney client privilege and attorney work product will result in redaction. In light of the Division’s petition, I find the Division has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, I find that, to the extent the responsive records contain the exempt information described above, the Division may assess a fee for segregation and redaction. Please note, Mr. Aleixo 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: Theodore J. Aleixo III