Commonwealth Transparency v. Department of Revenue (SPR 20252238)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 6, 2025 SPR25/2238 Roger H. Randall, Esq. Counsel to the Commissioner Litigation Bureau Department of Revenue 100 Cambridge Street, 7th Floor Boston, MA 02114 Dear Attorney Randall: On July 31, 2025, this office received your petition on behalf of the Department of Revenue (Department) seeking a waiver of statutory limits on fees that may be assessed in responding to the request. 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, OpenCommonwealth.org (requestor). G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). 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 and Appeal This request was the subject of a prior relief petition and appeal. See SPR25/1901 Determination of the Supervisor of Records (July 8, 2025) and SPR25/2014 Determination of the Supervisor of Records (July 24, 2025). In my July 24th determination, I ordered the Department to revise its fee estimate or provide further explanation of how the assessed fee was consistent with G. L. c. 66, § 10(d). Subsequently, the Department submitted the present petition. 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. SPR25/2238 Page 2 August 6, 2025 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. G. L. c. 66, § 10(d)(iv). It is my understanding that this request was not made for a commercial purpose. 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.

Roger H. Randall, Esq. SPR25/2238 Page 3 August 6, 2025 Present Petition In its July 31, 2025 petition, the Department requests permission to charge a fee in excess of $25.00 per hour, and provides the following information in support of its request: I am the only person in the Tax Division who responds to public-records requests, and so in the instances where such requests come to this Division by email (nearly all public-records requests) and are responded to by email, if the email still exists (and it may not), then it would reside somewhere in my email account. The Department hereby seeks, pursuant to section 10(d)(iv), approval to charge the value of my time, which is $75.83 per hour. That is my rate of compensation by the Department. The search that OpenCommonwealth.org is asking for is an arduous task that imposes a substantial burden on the Department of Revenue. My principal public functions include, among other assignments, responding to federal subpoenas for tax records and responding to taxpayers’ requests for their own records. I also am currently involved in significant Department litigation matters. The Department is advised that agencies may not petition the Supervisor for permission to waive statutory limits on fees that may be assessed in responding to a request. Consequently, the Department requests relief outside the scope of statutory authority given to the Supervisor under the Public Records Law. See G. L. c. 66, § 10(d)(iii), (iv); 950 C.M.R. 32.06(4). Conclusion In light of the above, I am unable to assist in this matter. Accordingly, I will now consider this petition closed. Sincerely, Manza Arthur Supervisor of Records cc: OpenCommonwealth.org