Doreen Cummings v. Executive Office of Housing and Livable Communities (SPR 20250850)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 2, 2025 SPR25/0850 Adrian Walleigh, Esq. Primary Records Access Officer Executive Office of Housing and Livable Communities 110 Cambridge Street, Suite 300 Boston, MA 02114 Dear Attorney Walleigh: On March 28, 2025, this office received your petition on behalf of the Executive Office of Housing and Livable Communities (Office/EOHLC) requesting permission to assess fees for time spent segregating and 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 Office furnished a copy of the petition to the requestor, Doreen Cummings. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On March 14, 2025, Doreen Cummings requested 30 categories of records “. . . related to my employment, termination, and any internal discussions concerning me at EOHLC . . .” 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). 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. 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

Adrian Walleigh, Esq. SPR25/0850 Page 2 April 2, 2025 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). Petition to Assess Fees In its petition, the Office requests “... [a]pproval to assess a fee of up to $29,275 for costs associated with responding to a public records request from Doren Cummings . . , received March 14, 2025[,]” and provides the following in support of its request: [We] have conducted a preliminary search for responsive records and identified approximately 47,000 documents. Please be advised that a number of these responsive documents will contain potentially privileged materials and materials exempt from disclosure under the Public Records Law and other statutes, including without limitation, G.L. c. 4, § 7(26)(c), and attorney-client privilege. Privacy Exemption (G. L. c. 4, § 7(26)(c)) – The documents requested contain or may contain personal identifying information, such as non-public mailing addresses, social security numbers, email addresses, phone numbers, dates of

Adrian Walleigh, Esq. SPR25/0850 Page 3 April 2, 2025 birth, and other information that is exempt from disclosure pursuant to the privacy exemption. Attorney-Client Privilege – Some of the records that may be responsive to the request are communications between EOHLC staff and attorneys or amongst attorneys. These communications are subject to attorney-client privilege and are exempt from disclosure under the Public Records Law to the extent they consist of communications about legal matters between counsel and client, or between attorneys representing clients with a common interest. These communications were made in confidence for the purpose of obtaining or providing confidential legal advice, did not include any person who was not an employee or attorney within EOHLC, and were not otherwise disclosed to a third party. Accordingly, the privilege has not been waived. I formally request a fee waiver In an email to this Division on April 2, 2025, Doren Cummings objects to the Office’s petition to assess fees and the Office’s March 28th response, arguing “...[t]his fee estimate and the six-month timeline you provided are not only prohibitive and excessive, but are designed to deter access to my own employment records. The volume of documents your office cites – over 47,000 records generated during just six months of employment – does not support the narrative used to justify my termination. I formally request a fee waiver in accordance with 950 C.M.R. 32.07(2) based on my status as the subject of the records and the public interest in understanding how state agencies handle internal matters related to gender, performance, and transparency. I am appealing this matter to the Supervisor of Records.” Based on the information provided in its fee petition, I find the Office 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 Office 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 Office may assess a fee for segregation and redaction. Additionally, I encourage the parties to communicate further to enable the Office to provide records in an efficient and affordable manner. Doreen Cummings may appeal the Office’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Doreen Cummings 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).

Adrian Walleigh, Esq. SPR25/0850 Page 4 April 2, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Doreen Cummings