Todd Wallack v. Massachusetts Board of Registration in Medicine (SPR 20160341)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords June 16, 2016 SPR16/341 Mr. Robert E. Harvey, Esq. Board Counsel Board of Registration of Medicine 200 Harvard Mill Square, Suite 330 Wakefield, MA 01880 Dear Attorney Harvey: 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. 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, § 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). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the vv'ithheld 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, § 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 fees are paid, a records custodian must provide the responsive records. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Robert E. Harvey, Esq. SPR16/341 Page2 June 16, 2016 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 conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. Previous appeals and determinations This request was the subject of previous appeals. See SPR16/159 Determination of the Supervisor ofRecords (March 11, 2016); SPR16/214 Determination ofthe Supervisor of Records (April 8, 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. The Board responded to this order in a letter dated March 21, 2016. In my April 8 determination, I found the Board failed to meet its burden to justify its fee estimate for the provision of records. I closed the appeal with the proviso that the Board provide Mr. Wallack a supplemental response to the request and the Board did so in a letter dated April 29, 2016. Mr. Wallack appealed the fee estimates and this appeal (SPR16/341) was opened as a result. Apri/29 response In its April29 response, the Board explains "[t]he Physician Profiles database contains more information than just the information that is publically available" and you indicate the "[a] full extract of the entire database in its native format would disclose confidential and/or non public information." Exemptions The Board claims it may withhold are social security numbers, home addresses and contact information under Exemption (c) as well as open complaints and investigations under G. L. c. 112, § 5 as it operates through Exemption (a). G. L. c. 4, § 7(26)(a), (c). You also claim open complaints and investigations may be withheld under Exemption (f). Further, you indicate information such as "the amount of any malpractice settlement and certain mandated reports" may also be withheld under G. L. c. 112, § 5. You explain "[t]o comply with the request, a program must be written and tested that extracts/redacts the data properly."

Mr. Robert E. Harvey, Esq. SPR16/341 Page 3 June 16, 2016 Fee estimate 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 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). 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, § 1O (a). The Board provides a fee estimate for the provision of records in the form requested by Mr. Wallack. Specifically, you explain "[t]o create a public version of the [database] with data that is accurate and properly redacted, it will require writing a program that effectively mimics how the website displays the data." The Board estimates it will take eight hundred and sixteen (816) hours to complete this task. The estimated number of hours is comprised of the following: one-hundred-twenty (120) hours for "Design," three-hundred-eighty (380) hours for "Code and Unit Test Program," one-hundred-ninety-six (196) hours for "System Testing, Data Validation, Fix Defects," eighty (80) hours for "Validation of Redacted data support," forty ( 40) hours for "Production Deployment and support." You indicate $98.00/hour is the "lowest hourly rate for someone to perform this task." 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 ofperfonning the task of providing responsive records. See 950 C.M.R. 32.06(1)(c). In his appeal petition, Mr. Wallack indicates his belief that the information could be provided in less time through "a simple SQL select query that retrieves the columns that are public." He also explains he is willing to work with the Board to facilitate this approach. I understand an attorney on my staff discussed this matter with you.

Mr. Robert E. Harvey, Esq. SPR16/341 Page 4 June 16, 2016 Conclusion Accordingly, I will consider this appeal closed with the proviso that the Board provides a response to Mr. Wallack without delay consistent with the Public Records Law, its Regulations and this order. This response must explain why writing a new rogram, instead of using a SQL select query, to comply with the request is necessary. cc: Mr. Todd Wallack Mr. George Zachos