Shane M. Fitzpatrick v. Office of the Attorney General (SPR 20252218)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 12, 2025 SPR25/2218 Hanne Rush, Esq. Assistant Attorney General Records Access Officer Office of the Attorney General One Ashburton Place, 20th Floor Boston, MA 02108 Dear Attorney Rush: I have received the petition of Shane M. Fitzpatrick appealing the response of the Office of the Attorney General (AGO) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 2, 2025, Mr. Fitzpatrick requested the following records: [1] Employment Records of [an identified individual] (2015–2016): Basic employment details (titles, salaries, disciplinary history, and cases or investigations involving HallKeen Management during her tenure). [2] HallKeen Management Records (2015–2025): Consumer complaints, enforcement actions, internal memoranda, LIHTC compliance records, and correspondence between HallKeen Management and the AGO. [3] Communications (2023–2025): Emails, internal notes, or memoranda referencing me ... involving AGO personnel, including [identified individuals]. The AGO provided Mr. Fitzpatrick with a response on July 17, 2025. Unsatisfied with the response, Mr. Fitzpatrick petitioned this office and this appeal, SPR25/2218, was opened as a result. 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 the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per 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

Hanne Rush, Esq. SPR25/2218 Page 2 August 12, 2025 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 July 23, 2025 appeal, Mr. Fitzpatrick stated, “[t]he AGO’s cost estimate for producing responsive records violates G.L. c.66, § 10(d)... Agencies must consider fee waivers or reductions when disclosure serves the public interest.” Waiver of fees In his petition, Mr. Fitzpatrick contends that he is entitled to a waiver of fees because he believes that the “cost estimates so excessive—including a spreadsheet of 27 complaints priced at a level clearly intended to discourage access—that they amount to a constructive denial.” G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: 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).

Hanne Rush, Esq. SPR25/2218 Page 3 August 12, 2025 The AGO’s July 17th response In its July 17, 2025 response, the AGO asserted, [The AGO] responded to a prior public records request from you, received by the AGO on April 15, 2025, for “[r]ecords of any investigations, complaints, inquiries, or legal actions involving HallKeen Management, Inc.” We enclose the AGO’s two response letters to your initial and modified requests for your reference. In the May 14, 2025 response, the AGO provided you with anonymized complaint data for 27 complaints responsive to your request. Since this prior response, the AGO has received one (1) additional complaint, which we have added to an updated spreadsheet of complaint data and enclose herein. Other than the updated complaint data, the AGO’s response to your request for these records remains the same. In its response, the AGO provided a fee estimate of $268.75. In support of the fee estimate, the AGO advised that it has “identified approximately five hundred and twenty-five (525) pages of investigatory records held in the AGO’s Civil Rights Division that may be responsive to Part 1 of your request ...” The AGO estimates the labor involved for search is 14.75 hours as follows: The estimated labor required to search for, gather and review the investigatory Records identified above for certain information protected by law amounts to fourteen and three quarters (14.75) hours. This estimate accounts for: one and one-half (1.5) hours already spent by staff compiling the complaint data disclosed to you in the May 14, 2025 response; four and one-half (4.5) hours already spent by qualified staff on your two requests regarding HallKeen Management, including conducting various searches to identify potentially responsive records; and eight and three-quarters (8.75) hours for staff to review, segregate and redact the records for certain information exempted from disclosure by law, all at the rate of $25.00 per hour. This estimate is based on a review of one (1) minute per page for the review and segregation for information protected by law of the 525 pages of records. However, G.L. c. 66 § 10(d)(ii)(B) provides that no fees shall be charged for the first four (4.0) hours of labor required to respond to a public records request. Therefore, the total amount of chargeable labor to respond to this part [of] your request is ten and three-quarters (10.75) hours at the rate of $25.00 per hour, which amounts to $268.75. The AGO further advised, “[p]ursuant to G.L. c. 66, § 10(d)(ii), an agency may charge 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, however, not to exceed $25.00 per hour. We do not anticipate that any AGO staff with

Hanne Rush, Esq. SPR25/2218 Page 4 August 12, 2025 a salary of less than $25.00 per hour can perform the abovementioned search, review, and segregation.” Based on a conversation between the AGO and an attorney at the Public Records Division, the AGO advised that the fee estimate was for records associated with Item 2 only, and that it intends to assess a fee for segregation and redaction time pursuant to attorney-client privilege. The AGO clarified the time for the fee estimate as follows: 6.00 hours for search 8.75 segregation and redaction 4.00 hours not charged 10.75 hours at $25 per hour = $268.75 Based on the AGO’s response, I find it has not met its burden to explain how the indicated amount of time is necessary to search, review, segregate and/or redact responsive records. Specifically, it is unclear how the AGO might assess a fee of “one and one-half 1.5 hours already spent by staff compiling the complaint data disclosed in a May 14, 2025 response[,]” to this July 2nd public records request. The AGO must clarify. Conclusion Accordingly, the AGO is to provide Mr. Fitzpatrick with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. Fitzpatrick may appeal the substantive nature of the AGO’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Shane Fitzpatrick