Angelina DePina v. Massachusetts Commission Against Discrimination (SPR 20252982)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 24, 2025 SPR25/2982 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 SPR25/2982 Page 2 October 24, 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 Appeal and Petitions This request was the subject of a previous appeal and petitions from the Commission. See SPR25/2606 Determination of the Supervisor of Records (September 10, 2025); SPR25/2626 Determination of the Supervisor of Records (September 10, 2025) and SPR25/2709 Determination of the Supervisor of Records (September 29, 2025). In my September 29th determination, I found it was unclear why the Commission required ten minutes “to review, segregate, and retrieve each document,” and I ordered the Commission to revise its fee estimate or provide further explanation of how the fees assessed were consistent with G. L. c. 66, § 10(d). Subsequently, the Commission responded on October 9, 2025. Unsatisfied with the Commission’s response, and objecting to the fees, Ms. DePina petitioned this office, and this appeal, SPR25/2982, 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). 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

Ruthy Barros SPR25/2982 Page 3 October 24, 2025 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). The Commission’s October 9th Response In its October 9, 2025 response, the Commission provides the following information concerning its fee estimate: Because the Commission conducts so much internal and external business through email, the Commission’s emails are often dense, have multiple pages, and have long attachments. Case evidence is regularly filed with the Commission via email with 20+ page document attachments. For example, while this request only has 306 documents, it has 1,043 pages that need reviewing. Over 500 of those pages are case documents filed as email attachments, which often include witness information, financial statements, and documents under protective order, and information pertaining to other cases which would be confidential under Exemption (a) and 804 CMR 1.21(a) and need additional reviewing and segregating. The Commission has found that a ten-minutes-per-document approach roughly correlates to a page-and-content-based approach that charges a lower review time for certain documents and higher review time for denser, more complicated

Ruthy Barros SPR25/2982 Page 4 October 24, 2025 documents. The ten-minutes per document approach has the additional benefit of creating a cleaner cost estimate that is easier to pare down in case the requestor wishes to narrow their scope since requestors are more interested in narrowing down by document than by page. If the Commission were to reassess its estimate using a page-based approach giving lower review time for certain documents and higher review time for denser, more complicated documents, the cost estimate would likely be higher: • One minute to review, segregate, and retrieve each of 2 pages of case notes. (2 pages × 1 minute = 2 minutes) • Three minutes to review, segregate, and retrieve each of 975 pages of emails to and from MCAD staff with attachments. (975 pages × 3 minutes = 2,925 minutes) • Four minutes to review, segregate, and retrieve each of 68 pages of internal emails between MCAD staff and MCAD attorneys, including creation of a privilege log. (68 pages × 4 minutes = 272 minutes) • Total review time: 2 minutes + 2,925 minutes + 272 minutes = 3,199 minutes ÷ 60 = approximately 53.3 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 49.3hours, which is subject to a $25.00 per hour fee pursuant to G.L. c. 66, § 10(d)(ii)(A). • Total estimated labor cost: 49.3 hours × $25.00 = $1,232.50 The original cost estimate was $1,175.00. The Commission will not revise its cost estimate to the higher amount and will stand by the lower, original cost estimate. Reasonableness of the Fee Estimate As noted in my prior determination, the Commission has previously 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, the Commission previously received approval to charge for segregation and redaction. See SPR25/2626 Determination of the Supervisor of Records (September 10, 2025). In light of the Commission’s October 9th response, where the Commission has explained the amount of time required to review, segregate and retrieve the records, I find the Commission has met its burden to explain how it has provided a reasonable fee estimate for the production of records responsive to this request. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). This office encourages Ms. DePina and the Commission to communicate directly 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

Ruthy Barros SPR25/2982 Page 5 October 24, 2025 records sought more efficiently and affordably). Any revision to the request would result in the requirement to issue a revised fee estimate. Conclusion As set forth above, I find the Commission has met its burden in responding to the request at this time. Any revision to the request would result in the requirement to issue a revised fee estimate. Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Angelina DePina