Commonwealth Transparency v. Department of Revenue (SPR 20253292)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 24, 2025 SPR25/3292 Roger H. Randall, Esq. Counsel to the Commissioner Litigation Bureau Massachusetts Department of Revenue 100 Cambridge Street, 7th Floor Boston, MA 02114 Dear Attorney Randall: I have received the petition of OpenCommonwealth.org (requestor) appealing the response of the Department of Revenue (Department/DOR) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 25, 2025, the requestor sought: The last 50 (fifty) public records requests immediately preceding this request made upon the Massachusetts Department of Revenue AND where the response was authored by [a named individual]; - the Public records request, itself; - all responses, specifically including, but not limited to those authored by [the named individual]; - all responsive records, if any, provided in response. Previous Petitions and Appeals This request was the subject of previous petitions from the Department and appeals. See SPR25/1901 Determination of the Supervisor of Records (July 8, 2025), SPR25/2014 Determination of the Supervisor of Records (July 24, 2025), SPR25/2238 Determination of the Supervisor of Records (August 6, 2025), and SPR25/2392 Determination of the Supervisor of Records (August 27, 2025). In my August 27th determination, I found that the Department must either revise its fee estimate or provide further explanation of how the assessed fee is consistent with G. L. c. 66, § 10(d). Specifically, I ordered the Department to provide additional information regarding the tasks involved in producing the records. Subsequently, on September 3, 2025, the Department provided a response, which included additional information concerning its $1,150.00 fee estimate. Unsatisfied with the Department’s response, and objecting to the fees, the requestor petitioned this office and this appeal, SPR25/3292, was opened as a result. While 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

Roger H. Randall, Esq. SPR25/3292 Page 2 November 24, 2025 this appeal was pending, the Department provided a supplemental response in an email to the requestor and this office on November 11, 2025. 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Department’s September 3rd and November 11th Responses In its previous August 13, 2025 response, the Department provided a revised fee estimate of $1,150.00 and indicated that it would require a total of “between 50 and 62.5 hours” of work, or “one and 1¼ hours to try to locate, and then to compile and reproduce” each responsive “prior public records request and [Department] response[.]” The Department additionally explained that it would not charge for the first four hours of work, and that it would charge a rate of $25 per hour, which is less than the hourly rate of the lowest paid employee with the necessary skills to perform the required tasks. In its November 3, 2025 response, a representative for the Department provided the following additional information concerning the tasks involved in producing the responsive records, and the amounts of time allocated to each task: [The Supervisor has] ordered the Department to clarify how much time is allocated to search, and how much time is allocated for compiling and reproducing the records. . . . With respect to each of the 50 requested prior public- records requests and responses, I would need to spend approximately 45 minutes searching, i.e., locating the requested record and [the] response, and any documents that were furnished with the response. By way of background, the Department does not retain requests and responses in a library or in an easily reconstructable format or location. . . . Therefore, in order to locate any particular prior request and response, I would need to search and examine my prior Sent

Roger H. Randall, Esq. SPR25/3292 Page 3 November 24, 2025 Mail emails serially and individually to identify a matter that relates to a response to a public records request . . . , and then if records were produced, to determine or confirm what records were identified or attached to such response. To compile and reproduce the located record, I would also need to spend, on average, between 15 and 30 minutes reviewing the prior file or communications that relate to or contain the response (and any attached or identified documentation), removing any non-responsive content, and then photo-copying the request and response into a disclosable record. I would also need to keep track, as I cycle through this process, as to which matters I have located and what the result of the search is. The specific time allocated to this task will obviously vary, depending upon the complexity and volume of each of the 50 prior requests and responses. I have endeavored to provide a good-faith estimate of the average time it will take to complete each part of these tasks. In its supplemental November 11, 2025 response, the Department reiterated its August 13, 2025 fee estimate and subsequent November 3, 2025 response. The Department additionally cited Friedman v. Division of Admin. Law Appeal and Bureau of Special Educ. Appeals to contend that, “[t]he search that OpenCommonwealth.org is asking for is an arduous task that imposes a substantial burden on the Department of Revenue” and note that the Department, “continues to maintain that a rule of reason when applied here . . . would be that the requester either withdraw his request or greatly narrow his request and pay for the value of the Department’s employee’s time.” Please be advised that in Friedman v. Div. of Admin. Law Appeal and Bureau of Special Educ. Appeals, the Suffolk Superior Court, in its Memorandum of Decision and Order on Defendants’ Motion to Dismiss, stated: [The requester] has a right to seek public records from his government, provided he does so in a reasonable manner. [The agencies], in turn, have a right not to be inundated with drain-the-ocean records requests, provided they fulfill the basic expectations of the [Public Records Law] in a fair and transparent manner. See Friedman v. Div. of Admin. Law Appeal and Bureau of Special Educ. Appeals, Suffolk Sup. No. 2284CV02061-C, at 3 (February 14, 2023). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Based on the Department’s response, this office encourages the requestor and the Department to communicate to facilitate providing records more efficiently and affordably. The requestor may wish to narrow or modify their request. See G. L. c. 66, § 10(b)(vii) (a 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).

Roger H. Randall, Esq. SPR25/3292 Page 4 November 24, 2025 Conclusion If outstanding issues remain after the requestor and the Department communicate further as described above, the requestor may file an appeal within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: OpenCommonwealth.org