Chris Van Buskirk v. Office of the State Auditor (SPR 20251622)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 24, 2025 SPR25/1622 Michael Leung-Tat, Esq. General Counsel I/Deputy Auditor Office of the State Auditor One Ashburton Place, Room 1819 Boston, MA 02108 Dear Attorney Leung-Tat: I have received the petition of Chris Van Buskirk, of the Boston Herald, appealing the response of the Office of the State Auditor (Office/OSA) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On May 21, 2025, Mr. Van Buskirk requested the following records: [1] Any and all emails sent or received between Jan. 1, 2024, and May 21, 2025 by [identified individuals] that include the following keywords: “Audit No. 2024-0001-351[,]” “2024-0001-351[,]” “shelter audit[,]” “emergency shelter audit[,]” “emergency shelter report[,]” “shelter report[,]” “Spinelli[,]” “Mercedes Cab Company[,]” “Mercedes[,]” “draft audit[,]” “emergency assistance audit[,]” [and] “emergency assistance shelter audit.” [2] Any and all draft copies of Audit No. 2024-0001-351 that were provided to the Executive Office of Housing and Livable Communities by the Office of the State Auditor. [3] Any and all official communications between the Office of the State Auditor and the Executive Office of Housing and Livable Communities that pertain to Audit No. 2024-0001-351. The Office responded on June 5, 2025. Unsatisfied with the Office’s response, Mr. Van Buskirk petitioned this office and this appeal, SPR25/1622, was opened as a result. Subsequently, the Office provided a further response to Mr. Van Buskirk on June 18, 2025. Fee estimate - 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 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

Michael Leung-Tat, Esq. SPR25/1622 Page 2 June 24, 2025 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 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 appeal In his appeal, Mr. Van Buskirk states, “[t]he language of 950 CMR 32.07(2)(k) clearly states that a records access officer may waive or reduce the amount of any assessed fee upon a showing that ‘disclosure of a requested record is in the public interest’ and ‘the request for records is not primarily in the commercial interest of the requester’. The disclosure of the records requested is clearly in the public interest because it will help Auditor ... constituents verify the accuracy of details included in her audit of the emergency shelter system, verify the allegations included in the report, and shine a light on how a publicly elected official interacts with other state agencies during investigations into their practices.” Waiver of fees In his petition, Mr. Van Buskirk contends that he is entitled to a waiver of fees, because he believes that the disclosure of the records requested is clearly in the public interest. Mr. Van Buskirk is advised that while a records access officer may waive applicable fees, under the criteria in 950 C.M.R. 32.07(2)(k)(l-3), the Supervisor has no authority to order that a record access officer do so. The Office’s June 5th Fee Estimate In its June 5, 2025 response, the Office provided an estimated fee of $2,000.00. In support of the fee estimate, the Office stated the following: OSA’s query based on your request, search terms, custodians, time period, etc. generated approximately 22.8K emails (25.22 GB). OSA’s fee estimate is below: [1] Hours to review and collect records requested: 4 hours[;] [2] Hours to search and produce electronic files for responsive records: 76 hours based on email reviews for past PRRs, I estimate that 5 emails can be

Michael Leung-Tat, Esq. SPR25/1622 Page 3 June 24, 2025 reviewed per minute[;] 22,800 emails + 5 emails per minute + 60 minutes = 76 hours [3] Hours to review and redact/withhold records for exemptions, including not limited to the Privacy Exemption - G.L. c. 4, § 7 (26)(c), the Deliberative Process Exemption - G. L. c. 4, § 7(26)(d), the Investigatory Exemption – G.L. c. 4, § 7(26)(f), and attorney work product and attorney-Client privilege: 4 hours[;] [4] Lowest hourly rate to search for and produce responsive records: $25 per hour [5] Subtotal: 84 hours x $25 per hour= $2,100 [6] Less first four hours in accordance with Public Records Law: -$100 [7] Total fee estimate: $2,000 In its June 18, 2025 response, the Office confirmed its fee estimate and stated, “[t]he OSA reasserts its good faith estimate of fees to fulfill the May 21, 2025 public records request by Chris Van Buskirk (the “Requestor”) in accordance with G. L. c. 66, § 10 and 950 C.M.R. 32.07.” Although the Office has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 84 hours of employee time, it is unclear how the Office requires this many hours to produce responsive records. The Office must provide details on the tasks necessary to produce the requested records. As such, the Office must provide additional information regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Further, the Office explained that redactions are necessary based on Exemptions (c), (d), and (f) of the Public Records Law, as well as attorney work product and attorney-client privilege. Based on the Office’s response, it is unclear whether the Office is charging for redactions that are not required by law. See G. L. c. 66, § l0(d)(iii) (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)). Therefore, I find the Office must clarify whether its fee estimate includes time for redacting records that is not required by law. For the reasons discussed above, I find the Office must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). I encourage Mr. Van Buskirk and the Office to communicate further in order to facilitate producing records efficiently and affordably. Mr. Van Buskirk may wish to include additional factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Office must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably).

Michael Leung-Tat, Esq. SPR25/1622 Page 4 June 24, 2025 Conclusion Accordingly, the Office is ordered to provide Mr. Van Buskirk with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Mr. Van Buskirk may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Chris Van Buskirk