Elizabeth Garthe v. Division of Occupational Licensure (SPR 20252493)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 28, 2025 SPR25/2493 Malav Patel, Esq. Assistant General Counsel for Public Affairs Division of Occupational Licensure One Federal Street, 6th Floor Boston, MA 02110 Dear Attorney Patel: On August 21, 2025, this office received your petition on behalf of the Division of Occupational Licensure (Division) requesting permission to assess fees for time spent segregating and redacting responsive records. 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 Division furnished a copy of the petition to the requestor, Elizabeth Garthe. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On August 18, 2025, Ms. Garthe requested “[a]ll communications to or from the OPSI, the DPL, the BCAB, the OAG, the Town of Swampscott, the Town of Marblehead, GLCT or the Appellants and any other party related to the BCAB ORDERs and/or compliance with those ORDERs from August 12, 2025 to August 18, 2025.” Petition to assess fees – Agencies A fee shall not 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. 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 a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 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

Malav Patel, Esq. SPR25/2493 Page 2 August 28, 2025 10(d)(iv). It is my determination 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 municipality 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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. Petition to Assess Fees In its petition, the Division requests “...[a]pproval to assess a fee of up to $100.00 for costs associated with responding to a public records request from Ms. Elizabeth Garthe, received on August 18, 2025” and provides the following in support of its request: [T]he DOL’s estimate for the $100.00 is four (4) hours of time at $25.00 dollars a hour to search, redact and segregate any responsive records that may exist. The exemptions that we intend to use include but are not limited to; Attorney-Client privilege, the Privacy Exemption, the Investigatory Exemptions and all other required by law. [T]he records being sought relate to ongoing litigation with the requester. The Attorney General’s Office, who is representing the DOL, in the matter that I cited regularly communicates [with] DOL attorneys. These emails are privileged however, they must be reviewed, and a log must be created. Without looking at the records itself, it is hard to determine how the other exemptions apply, however, the issue here is that DOL staff must search and review these records in the first place, which takes time.

Malav Patel, Esq. SPR25/2493 Page 3 August 28, 2025 In an email to this Division on August 26, 2025, Ms. Garthe objects to the Division’s petition to assess fees, arguing “[t]he majority of the “burden” Counsel Patel complaints about is the “burden” of actually having to produce the minutes and records they were required to make available to the public, but did not, for the last 10 years. We have performed a substantial public service in this regard, and should not be “punished” into the future with $100 fees as Counsel Patel requests. . .[w]e find Counsel Patel’s “burdensome” claim insulting and provocative. Counsel Patel has taken the time to draft, revise and submit his appeal in order to collect $100 from us, senior citizens who have been out of their home for 10 years due to his Agency’s inaction. We are, without doubt the “burdened” party. The DOL’s concern for $100, but no concern for public safety.” Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: The Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: The public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. This office has reviewed the trial court’s docket and verified that civil litigation, relating to records at issue in Ms. Garthe’s request, is active and ongoing in the Essex Superior Court. See Mango, Nicholas K. et. al. v. Bldg. Code Appeals Bd., (Essex Superior Court, Docket No. 2277-CV-00796). In light of the pending matter, I decline to opine on the Division’s petition at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Elizabeth Garthe