Angelina DePina v. Massachusetts Commission Against Discrimination (SPR 20252709)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 29, 2025 SPR25/2709 Ruthy Barros Records Access Officer Massachusetts Commission Against Discrimination One Ashburton Place, Room 601 Boston, MA 02108 Dear Ms. Barros: I have received the petition of Angelina DePina appealing the response of the Massachusetts Commission Against Discrimination (Commission/MCAD) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 20, 2025, Ms. DePina requested: [1] All emails, correspondence, and attachments sent or received by [15 identified Commission employees] relating to Case No. 22BEM00989… This request includes all communications between the [15 identified] employees and Respondent’s counsel: [four identified individuals] or any member of Prince Lobel Tye LLP. [2] All records, notes, or memoranda regarding any extensions, continuances, or accommodations granted to the Respondent or Respondent’s counsel in Case No. 22BEM00989[;] [3] All internal communications discussing compliance with deadlines by both the Complainant and Respondent’s counsel[;] [4] Any records, memoranda, or communications referencing potential or actual conflicts of interest involving Respondent’s counsel or their prior relationship with MCAD[;] [5] Any policies, procedures, or internal guidance documents concerning conflict checks when outside counsel appearing before MCAD has a prior employment or advisory relationship with the Commission[;] 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 SPR25/2709 Page 2 September 29, 2025 [6] Any policies, procedures, or internal guidance documents concerning conflict checks when outside counsel appearing before MCAD has a prior employment or advisory relationship with the Commission[;] [7] All internal communications or directives assigning, transferring, or reassigning responsibility for Case No. 22BEM00989 among MCAD employees[;] [8] Any documents explaining why multiple employees were assigned to or removed from this case[;] [9] All records, logs, or metadata showing access to, edits of, or updates made in MCAD’s internal case management system regarding Case No. 22BEM00989[;] [10] Any indexes, tracking logs, or administrative records showing communications or decisions made by the above-named employees. I understand the Commission assigned reference number 25-409 to this request. Previous Petitions This request was the subject of previous petitions from the Commission. See SPR25/2606 Determination of the Supervisor of Records (September 10, 2025) and SPR25/2626 Determination of the Supervisor of Records (September 10, 2025). In my September 10th determinations, I found that the Commission may assess a fee for the segregation and redaction of the responsive records, and that the Commission had established good cause for an extension of time. Concurrent with its petitions, the Commission provided Ms. DePina with a fee estimate on September 4, 2025, and provided an updated fee estimate on September 11, 2025. Objecting to the fees, Ms. DePina petitioned this office, and this appeal, SPR25/2709, was opened as a result. Subsequent to the opening of this appeal, the Commission provided a further response to Ms. DePina and this office on September 25, 2025, and Ms. DePina reiterated her objections to the Commission’s responses in multiple emails to this office and the Commission. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of

Ruthy Barros SPR25/2709 Page 3 September 29, 2025 establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response, a written good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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). Matters Outside the Scope of the Supervisor’s Authority In her appeal petition, Ms. DePina argues the following: My August 20, 2025 request explicitly named [the Records Access Officer] as one of the MCAD employees whose emails and correspondence I sought. This means she is a subject of the request. Despite that, she continued to act as Records Access Officer, exercising control over the scope of production, exemptions, and now fees. This is a direct conflict of interest. [The Supervisor’s] office compounded this violation by granting both (a) MCAD’s September 3 request for an extension and (b) MCAD’s September 4 petition for fee authority—effectively endorsing Ms. Barros’s conflicted role. The Supervisor of Records should never have allowed an RAO to handle a request that directly involves her own communications. Mr. DePina is advised that the Office of the Supervisor of Records is statutorily empowered with the authority to determine the public record status of government records. See

Ruthy Barros SPR25/2709 Page 4 September 29, 2025 G. L. c. 66, § 10. Further, in compliance with the Public Records Law, the Supervisor of Records may only issue determinations where a violation of G. L. c. 66, § 10 has been alleged. See G. L. c. 66, § 10A(a). Please note that allegations of a conflict of interest are outside the jurisdiction of this office. See 603 C.M.R. 23.00. Given that such issues do not fall within the authority of this office, I am unable to address such issues in this determination. G. L. c. 66, § 10(e) In her appeal petition, Ms. DePina also contends that “the Public Records Law requires agencies to provide either responsive records or a good-faith, itemized estimate within 10 business days.” She goes on to argue that “MCAD failed to provide such an estimate by September 4, 2025.” Please be advised that 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).” In this case, where Ms. DePina submitted her request on August 20, 2025, and the Commission initially responded on September 4, 2025 by providing Ms. DePina a fee estimate under G. L. c. 66, § 10(b), included with its petition, I find the Commission may assess a fee to produce responsive records. The Commission’s Fee Estimate In its September 4, 2025 response, the Commission provided a total fee estimate of $1,175. In its September 11, and September 25 responses, the Commission provided further information in support of its fee estimate. In its September 4th fee estimate, the Commission provides the following information concerning the anticipated redactions: • Statutory 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. • Privacy Exemption (G. L. c. 4, § 7(26)(c)) - The 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, and other information that is exempt from disclosure pursuant to the privacy exemption. • Investigatory Materials Exemption (G. L. c. 4, § 7(26)(f)) – The documents requested may include complainant names and materials related to cases pending 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. • Attorney-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

Ruthy Barros SPR25/2709 Page 5 September 29, 2025 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. In its September 11th response, the Commission provides the following additional information: Following an initial search, MCAD has identified approximately 306 responsive documents. Each document must be reviewed line by line to segregate any information exempt under the Public Records Law, including statutory confidentiality, personal privacy, investigatory materials, and attorney–client privileged communications. We estimate approximately 51 hours of staff time will be needed to produce the records you have requested. We have generated the estimated amount of time and costs as follows: • Ten minutes to review, segregate, and retrieve each document (306 documents × 10 minutes = 3,060 minutes ÷ 60 = approximately 51 hours). • In accordance with G.L. c. 66, § 10(d)(ii)(B), the first four (4) hours of this time is free of charge. • The remaining time is approximately 47 hours and is subject to a $25.00 per hour fee pursuant to G.L. c. 66, § 10(d)(ii)(A). Therefore, the Commission makes a good faith estimate of the cost to produce the records sought of $1,175.00[.] In its September 25th response, the Commission further explains the following: The MCAD has clarified with Ms. DePina that of the 306 documents, two documents are case notes, and the remaining 304 of the documents are emails between Ms. DePina, the investigator assigned, Respondent’s Counsel, and other MCAD staff. We explained that further itemization was not possible without reviewing each email individually. We also specified that [the RAO is] the lowest paid employee who is qualified to fulfill her request, and that while [the RAO’s] hourly rate is $45 per hour, we only invoiced her $25 per hour which is the maximum the law allows. Reasonableness of the Fee Estimate In its responses, the Commission has confirmed that it is not charging for the first four hours of work, and that it is charging less than the hourly rate of the lowest paid individual with the necessary skills. Additionally, as noted above, the Commission previously received approval to charge for segregation and redaction. See SPR25/2626 Determination of the Supervisor of Records (September 10, 2025).

Ruthy Barros SPR25/2709 Page 6 September 29, 2025 However, based on the information provided in the Commission’s responses, it is unclear why the Commission requires ten minutes “to review, segregate, and retrieve each document,” when the documents consist of emails and case notes. The Commission must provide further details regarding the contents of the records and why it would take ten minutes to review, segregate and retrieve each one. For the reasons discussed above, I find the Commission must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Commission is ordered to provide Ms. DePina 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. Ms. DePina may further appeal the substantive nature of the Commission’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Angelina DePina