Shane M. Fitzpatrick v. Office of the Attorney General (SPR 20252220)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 12, 2025 SPR25/2220 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 April 30, 2025, Mr. Fitzpatrick requested the following records: [1] HallKeen Management, Inc. Records of any investigations, complaints, inquiries, or legal actions involving HallKeen Management, Inc. Documents related to any open, pending, or completed cases from January 1, 2010, to the present[;] Related correspondence, reports, enforcement actions, settlements, consent agreements, or internal memos[;] [2] [An identified individual] (AGO Employee) For the period from January 1, 2015, to the present, please provide any public records regarding [an identified individual’s] employment with the AGO, including: Job titles and dates of employment Salary history[;] Any disciplinary actions, complaints, or internal investigations[;] Training records, certifications, or continuing education documents[;] Copies of any oaths of office, ethics acknowledgments, or other affirmations signed during her employment[;] [3] A list or summary of cases or investigations she worked on, particularly any involving HallKeen Management, Inc. The AGO provided Mr. Fitzpatrick with a response on April 30, 2025. Unsatisfied with the response, Mr. Fitzpatrick petitioned this office and this appeal, SPR25/2220, was opened as a result. 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. SPR25/2220 Page 2 August 12, 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 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. Fitzpatrick stated, “[t]he AGO’s cost estimate for producing responsive records violates G.L. c. 66, § 10(d) and 950 CMR 32.07(2)(k). Agencies must consider fee waivers or reductions when disclosure serves the public interest.” Fee Waivers 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. SPR25/2220 Page 3 August 12, 2025 The AGO’s April 30th response In its April 30, 2025 response, the AGO provided a fee estimate of $287.50. The AGO stated as follows: Part 1 Notwithstanding our objection to the broad scope and vague nature of your request, following a search of our case management system and using our custodial knowledge, we have identified the following records that may be responsive to Part 1 of your request and subject to disclosure under the public records law, G.L. c. 66, § 10 and G.L. c. 4, § 7, cl. 26: twenty-seven (27) complaints and associated records an approximately five hundred and twenty-five (525) pages of investigatory records held in the AGO’s Civil Rights Division. A manual review of the records is necessary to protect personal data and other information that is exempt from disclosure by law, including G.L. c. 66A, § 2(c), 940 CMR 11.04(1) (Fair Information Practices Act), as well as attorney work product and/or attorney-client privileged communications ... We estimate that the labor required to search for, gather and review the records identified above for certain information protected by law amounts to fifteen and one-half (15.5) hours. This estimate accounts for: four and one-half (4.5) hours already spent by qualified staff on your request, including conducting various searches to identify records potentially responsive to Part 1 of your request; two and one-quarter (2.25) hours for staff to review, segregate and redact the twenty-seven (27) complaints and any associated records for certain information exempted from disclosure by law; 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. 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 Part 1 of your request is eleven and one-half (11.5) hours at the rate of $25.00 per hour, which amounts to $287.50. 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. 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 a salary of less than $25.00 per hour can perform the abovementioned search, review, and segregation.”

Hanne Rush, Esq. SPR25/2220 Page 4 August 12, 2025 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 Halkeen Management, Inc. only. The AGO clarified the fee estimate as follows: 6.75 hours for search 8.75 segregation and redaction 4.00 hours not charged 11.50 hours at $25 per hour = $287.50 Based on the AGO’s response, I find it has met its burden to explain how the indicated amount of time is necessary to search for, review, segregate, and/or redact responsive records based on a review of one (1) minute per page for segregation and redaction of the responsive records. This office encourages Mr. Fitzpatrick and the AGO to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a 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 municipality 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. Conclusion Accordingly, I will consider this administrative appeal closed. Please be advised that this office shares jurisdiction with the Superior Court. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Shane Fitzpatrick