Sampson, Dana v. Department of Public Health - Division of Health Care Quality (SPR 20140060)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor ofR ecords March 3, 2014 SPR14/060 Mr. Dana Sampson 7 6 Redemption Rock Trail Sterling, MA 01564 Dear Mr. Sampson: I have received your letter appealing the response of Department of Public Health Division of Health Care Quality (DPH) to your request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, you requested copies of records regarding the Office of Emergency Services adoption ofNational Registry Education andRe certification Standards. DPH provided certain responsive records and provided a fee estimate for the provision of other records. Thereupon, this appeal was filed questioning the reasonableness of the fee estimate. On January 28, 2014 Sondra M. Korman, Deputy General Counsel for DPH provided you with a good faith fee estimate for searching, segregating and the copying of responsive records often (10) current and former employees from June 2012 through the present. DPH estimated the search and segregation fee based upon 90 hours of search and segregation at $44.00 per hour, plus 3 hours at $18.00 per hour for copying/scanning. Fees A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee of twenty cents ($.20) per page for a photocopy of a public record and fifty cents ($.50) per page for a computer print out of a public record. See 950 C.M.R. 32.06(1)(a). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Dana Sampson SPR14/060 Page Two March 3, 2014 In addition to the copying fee, the Regulations provide that in cases where search or segregation time is necessary a custodian of records may charge a pro-rated fee based on the hourly rate of the lowest paid employee who is capable of performing the task. 950 C.M.R. 32.06(1)(c). The Regulations define "search time" as the time needed to locate, pull from the file, copy and refile public records, and "segregation time" as the time used to redact data that is exempt from non-exempt material. 950 C.M.R. 32.03. The search and segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § IO(a). In discussions with an attorney on my staff Attorney Korman explained that the search and segregation is estimated at 90 hours because this request encompasses over 20 months ofDPH records, involving a number of current and forn1er employees. In addition to hard copy records maintained by DPH this search is estimated to generate over 4500 emails, the majority of which include multiple attachments. These records must be thoroughly reviewed in order to redact data that is exempt under the Public Records Law. Attorney Korman also explained that due to the nature of the records and possible exemptions that may apply, $44.00 is the hourly rate of the Policy and Regulatory Development Manager, who is the lowest paid employee capable of perfonning the task of search and segregation. Attorney Korman further explained that $18.00 is the hourly rate of the lowest paid employee left to perform the task of copying/scanning the non-exempt records generated by the search. No copying charges ($.20 per page) were assessed because it was presumed that the responsive records would be scanned; if scanning is not possible, there will be an additional copying charge assessed. Attorney Korman acknowledged in the fee estimate that, as this is an estimate, the actual time may be more or less than estimated. If the actual costs are less than estimated, the DPH must provide a refund of the difference. Alternatively, the DPH must provide a revised estimate, in advance, should the actual cost of complying with your request exceed the estimate. I find this fee estimate to be in compliance with the Public Records Law and its Regulations. Upon payment of the estimated fee, the DPH must begin the process of search and segregation and the records must be provided in a timely manner. This administrative appeal is now closed. Supervisor of Records cc: Ms. Lisa Vamerin Ms. Sondra M. Korman, Esq.