Robyn Unger v. Massachusetts Commission Against Discrimination (SPR 20252737)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 1, 2025 SPR25/2737 Ruthy Barros Records Access Officer Massachusetts Commission Against Discrimination 1 Ashburton Place, Suite 601 Boston, MA 02108 Dear Ms. Barros: I have received the petition of Robyn Unger 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 6, 2025, Ms. Unger requested 13 categories of records relating to MCAD Docket No. 19BEM03492 / EEOC No. 16C-2020- 00484. I understand the Commission assigned tracking number 25-376 to this request. Previous Petition This request was the subject of a previous petition from the Commission. See SPR25/2701 Determination of the Supervisor of Records (September 16, 2025). In my September 16th determination, I found that where the Commission had not submitted a timely petition, permission to charge for time spent segregating and redacting records could not be granted. I also noted that the determination did not preclude the Commission from charging for segregation and redaction that is required by law. Subsequently, the Commission responded on September 17, 2025, providing a fee estimate. Unsatisfied with the Commission’s responses, and objecting to the fees, Ms. Unger petitioned this office, and this appeal, SPR25/2737, was opened as a result. 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). 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 SPR25/2737 Page 2 October 1, 2025 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 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). Current Appeal In her appeal petition, Ms. Unger argues the following: I am writing today to request further assistance and to formally appeal the Massachusetts Commission Against Discrimination’s (MCAD) failure to meet statutory deadlines and timely produce records responsive to my August 6, 2025 public records request pursuant to G.L. c. 66, § 10A. As of today, I still have not received a single responsive record from MCAD, despite multiple follow-up requests. Subsequent to the opening of this appeal, in an email to this office on September 17, 2025, Ms. Unger indicates that she also objects to the Commission’s fee estimate.

Ruthy Barros SPR25/2737 Page 3 October 1, 2025 The Commission’s Responses In its August 20, 2025 response, the Commission states, among other things, the following: [D]ue to the relative size, scope, and complexity of your request, which seeks a broad range of records including case closure determinations, internal reviews, and extensive communications from multiple parties, MCAD requires additional time to gather, review, and prepare responsive records. . . . Additionally, please be advised that some of the requested records must be retrieved through the Executive Office of Technology Services and Security (EOTSS), which provides email and data services to the Commission. Coordinating with EOTSS adds additional time to the process. In its September 11, 2025 response, the Commission states that the “the Executive Office of Technology Services and Security (EOTSS) ran an eDiscovery search, and our initial review identified about 394 emails as potentially responsive.” In its September 12, 2025 response, the Commission, along with its petition, provided an initial fee estimate of $1,550.00, and stated that “[w]e do not have any documents prepared to give you at this time. We needed longer than our initial estimate due to the unexpectedly large number of files that came back from our eDiscovery search.” In its September 17, 2025 response, the Commission provides a total fee estimate of $1,550.00 and provides the following information in support of its fee estimate: Following an initial search, MCAD has identified approximately 394 responsive documents. The 394 documents are emails between you, [a named individual], Respondent’s Counsel, and other MCAD staff. Further itemization is not possible without reviewing each email individually which will only be done once the fee has been paid. 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 66 hours of staff time will be needed to produce the records you have requested. I am the lowest-paid employee qualified to fulfill your request, and my hourly rate is $45 per hour; however, we have only invoiced you at $25 per hour, which is the maximum the law allows. We have generated the estimated amount of time and costs as follows: • Ten minutes to review, segregate, and retrieve each document (394 documents × 10 minutes = 3,940 minutes ÷ 60 = approximately 66 hours). • In accordance with G.L. c. 66, § 10(d)(ii)(B), the first four (4) hours of this time is free of charge.

Ruthy Barros SPR25/2737 Page 4 October 1, 2025 • The remaining time is approximately 62 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 $1,550.00. In a letter to this office and Ms. Unger on September 22, 2025, the Commission provides the following additional information concerning its fee estimate: MCAD’s cost estimate to Ms. Unger is $1,550 for the segregation and redaction of approximately 394 emails. As outlined in the MCAD’s September 12, 2025 fee petition, Ms. Unger’s request is for a mix of documents regarding her investigation, internal emails with MCAD attorneys, internal investigative policies, and financial records. These records very likely contain personal data, privileged information, investigative materials, and records exempt under MCAD’s regulations 804 CMR 1.21(3) (“privileged information, attorney work product, information exempt from disclosure pursuant to the public records law,” personal data identifiers, and information under protective orders). MCAD cannot provide these records without properly segregating and redacting as required by law under 804 CMR 1.21(3), M.G.L. c. 4, §. 7, cl. 26(a), (c), (f), and attorney- client privilege. The MCAD refers your office to the substance of its fee petition which further outlines the segregation and redaction necessary under Exemption (a), (c), (f), and attorney-client privilege. 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 Ms. Unger submitted her request on August 6, 2025, and the Commission did not provide a good faith estimate of fees until September 12, 2025, I find the Commission has not met its burden to demonstrate that its response was in compliance with G. L. c. 66, § 10(b). Accordingly, the Commission may not charge a fee for public records under G. L. c. 66, § 10(e). Conclusion In multiple emails subsequent to the opening of this appeal, the Commission and Ms. Unger discuss potentially narrowing the scope of the request. This office encourages Ms. Unger and the Commission to communicate 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 records sought more efficiently and affordably).

Ruthy Barros SPR25/2737 Page 5 October 1, 2025 Accordingly, the Commission is ordered to provide Ms. Unger with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. Unger 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: Robyn Unger