Todd Wallack v. Executive Office of Health and Human Services - Board of Registration in Medicine (SPR 20160214)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords April 8, 2016 SPR16/214 Ms. Rhonda T. Maloney, Esq. Quality and Patient Safety Division Board of Registration of Medicine 200 Harvard Mill Square, Suite 330 Wakefield, MA 01880 Dear Attorney Maloney: I have received the petition of Todd Wallack of The Boston Globe appealing the response of the Board of Registration of Medicine (Board) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Wallack requested a copy of"the Board's electronic database of physicians in Massachusetts (including disciplinary information)." Mr. Wallack requested the records be provided via email, CD-ROM or alternate method. Previous appeal This request was the subject of a previous appeal. See SPR16/159 Determination of the Supervisor of Records (March 11, 2016). The Board initially denied providing a copy of the Profiles Database in an electronic form and indicated it can only be provided in the form of printed copies. The Board offered to provide approximately 100,000 pages of printed copies of the record, for which Mr. Wallack would be charged a fee of $.10 per page. In my March 11 determination, I found the Board must provide records in native form when so requested unless an exemption permits or requires non-disclosure. I ordered the Board to provide Mr. Wallack with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Access Regulations (Regulations). In response to the March 11 order, the Board provided a letter to Mr. Wallack dated March 21, 2016 in which it provided fee estimates for the provision of the responsive records. Mr. Wallack appealed the fee estimates and this appeal (SPR16/214) was opened as a result. March 21 response In its March 21 response, the Board provided a fee estimate to Mr. Wallack that includes time to "create a public version of the Profiles database," requiring a program to "be written by a OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Ms. Rhonda T. Maloney, Esq. SPR16/214 Page2 April 8, 2016 programmer to extract the data into a new data store." The Board further explains "[t]he estimated required IT time for this project is 816 hours at a cost of $98 per hour." As an alternative, "the Board could create a program to generate a new version of the public Standard Release file from the Physician Profiles database .... " The response indicates certain information would be redacted under various exemptions to the Public Records Law; however, it must be noted that in his appeal petition, Mr. Wallack explains he seeks only "the data that is already displayed on the public web site." As such it is unclear why any redaction would be necessary. Exemptions 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 Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Native form oft he records Where the native form of the records requested is electronic the Board must respond to a request that the records be provided in that form. However, the duty of a custodian of records to comply with requests for information extends only to records that exist and are in the custodian's custody. G. L. c. 4, § 7(26) (defining "public records" as those non-exempt materials made or received by a public employee); see also 950 C.M.R. 32.03 (defining "custodian" as the public employee with routine access to or control of public 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) (where cost of complying with a request for public records is expected to exceed ten dollars ($1 0.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the current Regulations, a custodian of records may assess a maximum fee off ive cents ($. 05) per page for a black and white single or double-sided photocopy of a public record. See 950 C.M.R. 32.06(1)(a).

Ms. Rhonda T. Maloney, Esq. SPR16/214 Page 3 April 8, 2016 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). Conclusion I find the Board has failed to meet its burden of justifying its fee estimate; the Board provided no explanation to justify hundreds of hours required provide responsive portions of the records. Further, the Board has not justified why $98.00 per hour is the hourly rate ofthe lowest paid employee capable of performing the task of providing responsive records. See 950 C.M.R. 32.06(1)(c). In addition, it is unclear whether creating a new program to respond to the request is necessary, rather than simply producing an extract from the existing database. I understand the Board has been in contact with Mr. Wallack regarding this request and fee estimate. You informed an attorney on my staff that the Board intends to continue this dialogue and is willing to provide a supplemental response to Mr. Wallack in attempt to lower the estimated cost. To assist my office provided to you a copy of Mr. Wallack's appeal. Accordingly, whereas the Board is willing to provide a supplemental response to Mr. Wallack that addresses the issues discussed above, I will consider this appeal closed with the proviso that such a response is provided within ten (1 0) days. If the Board intends to assess a fee, it must provide Mr. Wallack a revised written, good faith estimate for the cost of complying with his request consistent with the Public Records Law, its Regulations and this order. Upon payment of the fee, you are hereby ordered to provide the records in a timely manner. If the Board maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. Wallack 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. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to

Ms. Rhonda T. Maloney, Esq. SPR16/214 Page 4 April 8, 2016 conduct training workshops on the Public Records La on r quest. Please contact my office directly at the telephone number provided in this dete mi ti for further information. cc: Mr. Todd Wallack