Commonwealth Transparency v. Department of Revenue (SPR 20252392)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 27, 2025 SPR25/2392 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 Petitions and Appeal This request was the subject of prior petitions from the Department and an appeal from the requestor. See SPR25/1901 Determination of the Supervisor of Records (July 8, 2025), SPR25/2014 Determination of the Supervisor of Records (July 24, 2025), and SPR25/2238 Determination of the Supervisor of Records (August 6, 2025). In my July 24th determination, I found that the Department must either revise its fee estimate, or provide further explanation of how the assessed fees are consistent with G. L. c. 66, § 10(d). In my August 6th determination, I found that in petitioning for permission to charge fees in excess of the maximum hourly rate of $25 per hour for time required to comply with a request, the Department sought 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). Accordingly, I closed the petition. Subsequently, on August 13, 2025, the Department provided a response, which included a revised fee estimate of 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. SPR25/2392 Page 2 August 27, 2025 $1,150.00. Unsatisfied with the Department’s response, and objecting to the fees, the requestor petitioned this office and this appeal, SPR25/2392, was opened as a result. Fee Estimates – Agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). Current Appeal In the August 13, 2025 appeal petition, the requestor asserts that the Department “has failed to provide a good faith estimate within 10 business days as required under Massachusetts Public Records Law.” The requestor further requests that the Supervisor, “find and order the Massachusetts Department of Revenue to provide any and all responsive records without charge[.]” G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where the requestor submitted the request on June 25, 2025, and the Department responded on July 10, 2025, providing a fee estimate under G. L. c. 66, § 10(b), I find that the Department may assess fees to produce the requested records. 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

Roger H. Randall, Esq. SPR25/2392 Page 3 August 27, 2025 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). The Department’s August 13th Fee Estimate In its earlier July 10, 2025 fee estimate, the Department indicated that the process of locating, compiling, and preparing the responsive documents for production would take between 50 and 62.5 hours of employee time based on its estimate, “that for each prior public-records-law request and response that [the requestor is] 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 August 13, 2025 response, the Department provided a revised fee estimate of $1,150.00. Here, the Department reiterated that the process of locating, compiling, and preparing the responsive documents for production would take between 50 and 62.5 hours of employee time and stated, “[a]s we have previously advised you, the Department estimates that for each prior public records request and our response, it would take on average between about one and 1¼ hours to try to locate, and then to compile and reproduce such earlier public records request and the Department’s response.” The Department additionally stated, “[f]or the purposes of calculating the amount of a deposit, I have done the following multiplication: one hour x $25/hour x 46 = $1,150.” Upon review, although the Department has estimated that the process of compiling, reviewing, and preparing requested records requires between 50 and 62.5 hours, or “one and 1¼ hours to try to locate, and then to compile and reproduce[,]” it remains unclear from the Department’s estimate how much time is allocated to search, and how much time is allocated for compiling and reproducing the records. As such, the Department must provide additional information regarding the tasks involved in producing these records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). For the reason discussed above, I find that the Department must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and 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

Roger H. Randall, Esq. SPR25/2392 Page 4 August 27, 2025 records sought more efficiently and affordably). Any revision to the request would result in the requirement to issue a revised fee estimate. 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