Commonwealth Transparency v. Department of Revenue (SPR 20252014)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 24, 2025 SPR25/2014 Roger H. Randall, Esq. Counsel to the Commissioner Litigation Bureau Massachusetts Department of Revenue 100 Cambridge Street, 7th Floor Boston, MA 02114 Dear Attorney Randall: I have received the petition of OpenCommonwealth.org (requestor) appealing the response of the Department of Revenue (Department/DOR) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 25, 2025, the requestor sought: The last 50 (fifty) public records requests immediately preceding this request made upon the Massachusetts Department of Revenue AND where the response was authored by [a named individual]; - the Public records request, itself; - all responses, specifically including, but not limited to those authored by [the named individual]; - all responsive records, if any, provided in response. Prior Petition This request was the subject of a prior relief petition. See SPR25/1901 Determination of the Supervisor of Records (July 8, 2025). In my July 8th determination, I found that the Department had not demonstrated that the request was frivolous and not intended for the broad dissemination of information to the public about actual or alleged government activity, as required to grant relief under G. L. c. 66, § 10(c). The Department responded on July 10, 2025. Unsatisfied with the response, the requestor petitioned this office and this appeal, SPR25/2014, was opened as a result. Subsequent to the opening of this appeal, the Department provided a further response on July 15, 2024. 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

Roger H. Randall, Esq. SPR25/2014 Page 2 July 24, 2025 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Department’s July 10th and July 15th Responses In its July 10, 2025 response, the Department stated: The statute allows us to charge at least $25 per hour for employee time beyond four hours spent to search for, compile, and reproduce the records you have asked for, if they exist. The statute, section (d)(ii), also allows us to petition the Supervisor to charge the actual hourly rate attributable to the employee necessary to do this work. We reserve, among other rights, the right to submit such petition to the Supervisor. My time is valued at $75.83 per hour. I have spent 2¾ hours so far addressing your request. The eventual total will depend on whether you withdraw your request or narrow your request … I estimate that for each prior public-records-law request and response that you are seeking, we will need to expend between about one hour and 1¼ hours to try to locate, and if it still exists, to compile and re-produce. In its July 15, 2025 response, the Department stood by its July 10th response and reiterated its prior position. The Department further stated, “… the DOR does not keep copies of its responses to earlier public records requests. Also, the DOR does not retain its responses in a library or in chronological fashion or otherwise in an easily reconstructable format or location.” Fee Waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records:

Roger H. Randall, Esq. SPR25/2014 Page 3 July 24, 2025 the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). Reasonableness of the Fee Estimate Although the Department has estimated that the process of locating, compiling, and preparing the responsive documents for production will take between 50 and 62.5 hours of employee time, the Department has not provided sufficient explanation of why this amount of employee time is necessary. The Department must provide a specific estimate of how many hours it would take to search, compile, and reproduce the responsive records. The Department must also provide additional information regarding the tasks necessary to produce the responsive records. Further, the Department is advised that under the Public Records Law, 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 skill necessary to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. G. L. c. 66, § 10(d)(iii). Agencies may charge more than $25 per hour only if such rate is approved by the Supervisor under a petition pursuant to G. L. c. 66, § 10(d)(iv). Consequently, the Department must clarify the hourly rate it intends to charge to respond to the request. For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fee assessed in its July 10, 2025 estimate is consistent with G. L. c. 66, § 10(d). This office encourages the requestor and the Department to communicate further in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency 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 to produce the records sought more efficiently and affordably). Any revision to the request would result in the requirement to issue a revised fee estimate.

Roger H. Randall, Esq. SPR25/2014 Page 4 July 24, 2025 Conclusion Accordingly, the Department is ordered to provide the requestor 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. The requestor 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: OpenCommonwealth.org