Robyn Unger v. Massachusetts Commission Against Discrimination (SPR 20252701)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 16, 2025 SPR25/2701 Ruthy Barros Records Access Officer/Deputy Clerk Massachusetts Commission Against Discrimination 1 Ashburton Place, Suite 601 Boston, MA 02108 Dear Ms. Barros: On September 12, 2025, this office received your petition on behalf of the Massachusetts Commission Against Discrimination (Commission) 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 Commission furnished a copy of the petition to the requestor, Robyn Unger. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On August 6, 2025, Ms. Unger requested 13 categories of records relating to MCAD Docket No. 19BEM03492 / EEOC No. 16C-2020-00484. 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, § 10(d)(iv). It is my understanding that this request was not made for a commercial purpose. 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

Ruthy Barros SPR25/2701 Page 2 September 16, 2025 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. 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). Petition to Assess Fees In its petition, the Commission requests “approval to assess a fee of up to $1,550.00 for costs associated with responding to a public records request from Robyn Unger (‘Requestor’), received on August 6, 2025” and provides the following information in support of its request: [MCAD], working with the Executive Office of Technology Services and Security (EOTSS), conducted an eDiscovery search and identified 589 emails. MCAD’s preliminary review has identified approximately 394 as potentially responsive. Many of these items are email communications that include attorney-client privileged content, investigative materials, financial records, and other material requiring careful segregation and redaction. [S]tatutory Exemption (G. L. c. 4, § 7(26)(a)) – The documents requests contain or may contain information exempt from disclosure under G. L. c. 6, § 167, et al.

Ruthy Barros SPR25/2701 Page 3 September 16, 2025 [P]rivacy Exemption (G. L. c. 4, § 7(26)(c)) – Some of the requested documents are tax, payroll, checks, and other financial documents. These and other documents requested contain or may contain personal identifying information, such as non-public mailing addresses, social security numbers, email addresses, phone numbers, dates of birth, financial account information, and other information that is exempt from disclosure pursuant to the privacy exemption. [I]nvestigatory Materials Exemption (G. L. c. 4, § 7(26)(f)) – The documents requested may include complainant names and materials related to cases before the MCAD that will require redaction under this exemption. The Investigatory Materials Exemption exempts from disclosure investigatory materials that if disclosed would so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. [A]ttorney-Client Privilege – Some of the records that may be responsive to the request are communications between MCAD staff and attorneys or amongst attorneys. These communications are subject to attorney-client privilege and are exempt from disclosure under the Public Records Law to the extent they consist of communications about legal matters between counsel and client, or between attorneys representing clients with a common interest. These communications were made in confidence for the purpose of obtaining or providing confidential legal advice, did not include any person who was not an employee or attorney within the Commission, and were not otherwise disclosed to a third party. Accordingly, the privilege has not been waived. Conclusion The Commission submitted its petition on September 12, 2025, more than ten business days after receipt of the request. In light of the fact the Commission has not demonstrated it submitted a timely petition, permission to charge for time spent segregating or redacting responsive records cannot be granted. 950 C.M.R. 32.06(4)(g). Please note, however, this determination does not preclude the Commission from charging for segregation and redaction that is required by law. Further, this office encourages Ms. Unger and the Commission to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § -- 10(b)(vii) (a municipality or 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 municipality or agency to produce records sought more efficiently and affordably).

Ruthy Barros SPR25/2701 Page 4 September 16, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Robyn Unger