Wyman, Allen v. Board of Registration of Hazardous Waste Site Cleanup Professionals (SPR 20150297)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords July31,2015 SPRlS/297 Ms. Beverly Coles-Roby, Esq. Executive Director Board of Registration of Hazardous Waste Site Cleanup Professionals One Winter Street, 3rd Floor Boston, MA 02108 Dear Attorney Coles-Roby: I have received the petition of Allen Wyman appealing the response of the Board of Registration of Hazardous Waste Site Professionals (Board) to his request for public records. G. L. c. 66 § lO(b); see also 950 C.M.R. 32.08(2). Specifically, in a letter dated December 18,2014 Mr. Wyman"[e ] lectronic copies of case files for Complaints dismissed by the LSP Board between 1993 to the present." A review of a letter found on the Board's "News & Updates" page reveals, "[a]lso known as 'Licensed Site Professionals' or 'LSPs,' Hazardous Waste Site Cleanup Professionals are licensed by the Board to oversee the assessment and cleanup of property in Massachusetts that has become contaminated with oil, gasoline, or other hazardous materials." See www.mass.gov/eea/agencies/lsp/news-and-updates.html (accessed July 29, 2015). In a December 19, 20 14 boilerplate letter the Board acknowledged receipt of the request. In an email dated January 12,2015 Mr. Wyman requested an update on his request. A substantive response was provided by the Board, dated January 13, 2015. In this response the Board found "approximately sixty-six sets of complaints" that respond to Mr. Wyman's request. The Board further stated that it would review these records to determine what, if any portion would need redaction or withholding under a specific exemption to the Public Records Law. The Board further stated that "consistent with the Public Record Law, there is a presumption that the LSP Board will charge fees" associated with assembling the documents. A fee estimate of $1,199, with no additional detail, was provided. This use of the word "presumption" is in error. The presumption under the law is that all records are subject to mandatory disclosure. There is no presumption in the Public Records Law that a custodian will charge a fee for access to those records. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Beverly Coles-Roby, Esq. SPR15/297 Page Two July31,2015 In response to the January 13 Board letter, and in an effort to reduce the fees associated with the request, Mr. Wyman amended his request in an email dated January 27, 2015. In his amended request he requested for each "complaint that resulted in dismissal," copies of the complaint, any written response by the individual LSP, and a copy of any dismissal letter sent by the Board to the LSP. In a response dated February 27, 2015 the Board, rather than address the response by reducing fees, suggested there would be "escalating costs" in responding to the request. Further, the Board asserted a statutory exemption to redact personal data, as defined by the Fair Information Practices Act (FIPA). G. L. c. 66A. Mr. Wyman appealed the claim ofthis exemption. At the outset, it is important to note that the Board's responses were not made in compliance with the timeliness requirements of the Public Records Law and its Access Regulations. After a form-letter response, the Board's substantive response is dated January 12, 2015, twenty-six days after Mr. Wyman's December 18,2014 request. The Boards February 27, 2015 letter was provided thirty-one days after Mr. Wyman's January 27,2015 revised request, and seventy-one days after his December 18,2014 request. G. L. c. 4, § 7 (26); 950 C.M.R. 32 et seq. A record custodian must comply with a public records request as soon as is practicable, without unreasonable delay, and always within ten (10) calendar days. G. L. c. 66, § 10(a); 950 C.M.R. 32.05(2). The Board is advised that all responses to requests for public records must be made in compliance with the timeliness requirement of the Access Regulations. Merely sending a form letter acknowledgment, such as the Board's January 13 letter, does not satisfy this requirement. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town 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 ( c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Exemption (a) The Board cites FIP A to justify limiting access to the dismissed complaint records. Exemption (a) of the Public Records Law merits consideration. It allows withholding of those records that are:

Ms. Beverly Coles-Roby, Esq. SPR15/297 Page Three July 31, 2015 specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26) A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney General v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). You cite the FIF A statute as a means to withhold or redact certain of the records responsive to the request. FIP A imposes restrictions on the dissemination of "personal data." G. L. c. 66a, § 2( c). "Personal data" is defined to include: any information concerning an individual which, because of name, identifying number, mark or description can be readily associated with a particular individual; provided, however, that such information is not contained in a public record, as defined in clause Twenty-sixth of section seven of chapter four and shall not include intelligence information, evaluative information or criminal offender record information as defined in section one hundred and sixty-seven of chapter SIX. G. L. c. 66A, §1 The definition of "personal data" contained in FIP A expressly excludes information contained in a public record. G. L. c. 66A, § 1. FIPA and the Public Records Law are to be construed to work together consistent with the legislative purpose. 32 Op. Atty Gen. Mass. 157, 160 (May 18, 1977). FIP A cannot provide a basis for withholding the requested information unless the records fall within a statutory exemption to the definition of public records. Exemption (c) The underlying exemption cited by the Board is the second clause of Exemption (c) of the Public Records Law. A review of the second clause is warranted. Exemption (c) applies to: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, §7 (26) Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The second clause of Exemption (c) does not protect all data relating to specifically named

Ms. Beverly Coles-Roby, Esq. SPR15/297 Page Four July 31, 2015 individuals. Rather, it only permits custodians of records to withhold "intimate details of a highly personal nature." Attorney Gen. v. Assistant Comm'r of the Real Prop. Dep't of Boston, 3 80 Mass. 623, 625 ( 1980). The second clause of Exemption (c) requires record custodians to perform a two-step analysis to show cause for withholding information from disclosure. Record custodians must first address the threshold issue of whether the requested information constitutes an "intimate detail of a highly personal nature." If the requested information does not fit this description, then the second clause of Exemption (c) does not apply. If, however, the requested information does constitute "an intimate detail of a highly personal nature," the record custodian must then determine whether the public interest in disclosure outweighs the privacy interest associated with the disclosure of the information. In the February 27 letter the Board merely references the second clause in a footnote, citing a portion of the language from the exemption but otherwise providing no information to support the notion that portions of the responsive records would contain such intimate details. As indicated above, the Board's website provides information regarding LSPs, including notices of discipline taken by the Board against those LSPs. A brief review of the website reveals several examples of disciplinary letters that include the identity of the LSP and the complainant. It is unclear what portion of a "complaint," "written response" by an LSP or "dismissal letter" from the Board would contain any such intimate details to warrant withholding under the second clause of Exemption (c) of the Public Records Law. The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The response by the Board did not contain the specificity required in a denial of access to public records. Accordingly, the Board is advised that to comply with the Public Records Law and Regulations it must provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. 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). 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 ofrecords 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 printout of a public record. See 950 C.M.R. 32.06(1)(a).

Ms. Beverly Coles-Roby, Esq. SPR15/297 Page Five July 31, 2015 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, § 10(a). The Board's January 13 letter provides for a fee of $1, 199 to review responsive records. To support this fee the letter provides, in a footnote, a reference to the Regulations with respect to "search time," however no other detail is provided. It is unclear from this estimate how many hours would be required to search for the records, and at what hourly rate. For this reason it is impossible to determine whether the hourly rate is the one of the lowest paid person capable of performing the task. As such, I find the Board has not met its burden of specificity with respect to the fee estimate provided to Mr. Wyman. Order Accordingly, whereas the Board has not overcome the presumption that the requested records are public, the Board is hereby ordered, within ten (10) days ofthis order, to provide Mr. Wyman with a revised response to his public records request. If the Board maintains that any portion of the responsive records are exempt from disclosure the Board must, within ten (1 0) days provide to Mr. Wyman a written explanation, with specificity, how a particular exemption applies to each record. 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. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. If there are any fees associated with this response a revised written, good faith estimate detailing all the costs of providing the records must be provided to Mr. Wyman. G. L. c. 66, § 1O (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). Once the fees are paid, the Board must provide the res onsive records. Supervisor of Records cc: Mr. Allen Wyman