Mike Vichich v. Department of Public Utilities (SPR 20251795)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 30, 2025 SPR25/1795 Mathieu Cunha, Esq. Records Access Officer Department of Public Utilities One South Station Boston, MA 02210 Dear Attorney Cunha: On June 23, 2025, this office received your petition on behalf of the Department of Public Utilities (Department) seeking an extension of time to produce records and requesting permission to charge for time spent segregating or redacting responsive records. See G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). 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 Department furnished a copy of the petition to the requestor, Mike Vichich, of Records Retrieval Solutions. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On June 9, 2025, Mr. Vichich requested “all purchase orders issued by the Department of Public Utilities (DPU) from January 1, 2020, through March 31, 2025, across all departments.” Petition for an Extension of Time (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). 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

Mathieu Cunha, Esq. SPR25/1795 Page 2 June 30, 2025 If the Supervisor of Records (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) must provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Request for Additional Time to Produce Records In its petition, the Department requests an extension of 10 business days and provides the following information in support of its request: The Department conducted a preliminary search and found approximately 350 items. According to this preliminary assessment, the Department has determined that it will require an extensive amount of time to complete the request. Because the request has come at the end of the fiscal year, the individuals responsible for collecting this financial information are currently busier than they would typically be. More importantly, the requested purchase orders must be downloaded individually, they cannot be downloaded as a group. Consequently, the painstaking process of collecting over five years worth of records cannot be done quickly, and will require a substantial amount of staff time. In light of the need to collect, segregate and examine the records, as well as the capacity of the Department to produce the records without an extension, the Department has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iii). The Department is granted an extension of 10 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 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.

Mathieu Cunha, Esq. SPR25/1795 Page 3 June 30, 2025 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. Petition to Assess Fees In its petition, the Department requests to charge fees for time spent segregating and redacting responsive records. Commercial Purpose Subsequent to the opening of this petition, in a correspondence to the requestor and this office on June 25, 2025, the Department argues that the request was made for a commercial purpose, and provides the following information in support of its argument: The requester, Mr. Vichich, sent his work through RecordsRetrievalSolutions.com, a FOIA collection service. His name was not attached to the email account that first sent the Department the records request, he sent two nearly identical requests one after the other, and he is requesting purchase orders, in other words commercial information, from the Department. The request was at once both detailed in listing the data it sought (Vendor details, contract signatory, yes/no on competitive process…etc), and broad, encompassing

Mathieu Cunha, Esq. SPR25/1795 Page 4 June 30, 2025 five years worth of data. Given the totality of the circumstances, the Department infers that this was a mass request designed to produce market information that Mr. Vichich could then use for commercial gain. 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). Based on the Department’s petition, it is my understanding that the request made by Mr. Vichich meets the statutory definition of “commercial purpose” within the Public Records Law. See G. L. c. 66, § l0(d)(ix); see also SPR20/2599 Determination of the Supervisor of Records (January 5, 2021). Conclusion As described above, I find that the Department has established good cause for a time extension of 10 business days. Further, based on the Department’s petition and my finding that the request was placed for a commercial purpose, I approve the Department’s petition to assess a fee for segregation and redaction. Please be advised, agencies may not assess a fee for the first four hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. See G. L. c. 66, § 10(d)(iii). Please note, Mr. Vichich 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: Mike Vichich