Colman Herman v. Office of the Secretary of the Commonwealth - Administrative Services Division (SPR 20250490)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 26, 2025 SPR25/0490 Sofya Gray Records Access Officer Office of the Secretary of the Commonwealth Administrative Services Division One Ashburton Place, Room 1719 Boston, MA 02108 Dear Ms. Gray: On February 19, 2025, this office received a petition on behalf of the Administrative Services Division (Division) seeking an extension of time to produce records, and 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, I understand that the Division furnished a copy of this petition to the requestor, Colman Herman. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On February 5, 2025, Mr. Herman requested the following: [1] ... any and all communications between [a named individual] and the state police for the period January 1, 2024 to December 31, 2024. [2] ... any and all communications between [a named individual] and the City of Boston for the period January 1, 2024 to December 31, 2024. Petitions 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; 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

Sofya Gray SPR25/0490 Page 2 February 26, 2025 (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 In its petition, the Division requests “a one-time extension of 20 business days to produce a response to the requester.” The Division explains the following in support of its request: Given the broad scope of the request and the volume of potentially responsive records, which require detailed review and redaction, the Division submits that it is not reasonable to require it to produce the responsive records within 10 business days. Additionally, the employee who will perform the search, segregation and redaction process has many other responsibilities which they cannot ignore. The Division will be unable to complete its review, redaction, and production of records within 10 business days. Based on the Division’s petition, I find that in light of the need to search for, collect, segregate and examine the records, and the capacity of the Division to produce the request without the extension, the Division has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). The Division is granted an extension of 20 business days. 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). In rendering such a decision, the Supervisor is required to consider the following: a) the

Sofya Gray SPR25/0490 Page 3 February 26, 2025 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). 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 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). Current Petition to Assess Fees In its petition, the Division states that “due to the nature of the request, we believe that many, if not all, of the responsive records will require redaction under Exemption (c) of the Public Records Law.” The Division further explains the following: Upon review, many of the email correspondences may contain personal email

Sofya Gray SPR25/0490 Page 4 February 26, 2025 addresses and personal phone numbers which will need to be redacted pursuant to ... G. L. c. 4, § 7 (26)(c) (privacy). Given the potential volume of material that must be reviewed and potentially segregated or redacted, in accordance with G.L. c. 66, § 10(b) and 950 C.M.R. 32.07(2), we have determined that a fee is necessary to process this production. 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). To the extent the responsive records contain the exempt information as described above, the Division may assess a fee for the segregation and redaction of such exempt material. Conclusion Accordingly, I find the Division has established good cause for a time extension of 20 business days as described above. Additionally, 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. Herman 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: Colman Herman