Colman Herman v. Massachusetts Housing Finance Agency (SPR 20160484)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 10,2016 SPR16/484 Ms. Beth Elliot, Esq. General Counsel Massachusetts Housing Finance Agency One Beacon Street Boston, MA 02108 Dear Attorney Elliot: I have received the petition of Colman Herman appealing the response of the Massachusetts Housing Finance Agency (MassHousing) to a request for public records. G. L. c. 66 § lO(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Herman requested copies of"[a]ny and all settlement agreements, separation agreements, and/or the like reached with present and/or past MassHousing employees in 2015 and 2016" (Request 1) and "[l]egal complaints filed in court against MassHousing by present and/or past MassHousing employees in 2015 and 2016" (Request 2). In a response dated June 29, 2016, MassHousing provided a responsive record and included a fee estimate for the provision of the remaining records. Mr. Herman appealed this response. Subsequent to the opening of this appeal, MassHousing provided additional responses on July 25, 2016, August 2, 2016, and August 4, 2016. Mr. Herman appealed these responses as well. Presumptions; custodial burdens The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lO(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 withheld or redacted portion of the responsive record. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Beth Elliot, Esq. SPR16/484 Page2 August 10,2016 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. Fees A custodian of records may assess a reasonable fee for complying with a request for public records. 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 ($1 0.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the current Regulations, a custodian of records may assess a maximum fee of five cents ($.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, § 10(a). Request 1 MassHousing initially provided a fee estimate in the amount of $139.60 for the provision of records responsive to Request 1. MassHousing later reduced its fee estimate twice; first to $136.50 then to $73.32. The $73.32 estimate, provided on August 2, 2016, includes $9.24 for search time (0.25 hours at a rate of$36.97/hour); $63.18 for segregation time (1.00 hour at a rate of $63.18/hour); and $0.90 for copying costs (18 pages at a rate of $0.05/page). Search charges explained With respect to the charge assessed for the time to search for the records, you explain in correspondence dated August 4 that "[t]he time estimate of 15 minutes reflects the time required to locate the 4 responsive documents, pull each of them from the relevant file, copy each

Ms. Beth Elliot, Esq. SPR16/484 Page 3 August 10, 2016 document and refile the records in question in each of the relevant files." You further indicate the hourly rate of$36.97 "is the rate ofthe lowest-paid employee in MassHousing's Human Resources Department, which is the Department in which the requested documents are maintained." You state, "[a]s the requested documents are filed in confidential personnel records, access to these records is limited to Human Resources personnel." Mass Housing satisfies burden ofs pecificity with respect to search and copy costs I find MassHousing has met its burden of specificity with respect to its estimate of one quarter hour (0.25 hours) to search for the four (4 ) responsive records. I also find MassHousing has satisfied its burden of specificity with respect to the hourly rate of $36.97 for Human Resources personnel to search for, copy and refile the records. I similarly find the estimate for copies to be reasonable and in compliance with the Regulations. MassHousing is advised that if the actual time required to produce the records is less than estimated, or if the number of copies is less than estimated, Mr. Herman is to be refunded the difference in cost. See G.L. c. 66, § 10(a). Segregation charges explained In the August 2 response you explain the hourly rate of $63.18 "is based on the lowest paid attorney in the Legal Department at MassHousing." You explain that no other MassHousing staff members "have knowledge of or experience with the documents in question" and "[ o ]nly a staff attorney can therefore review the requested materials and redact information subject to exemption ...." In your August 4 correspondence you further explain MassHousing "does not use state form documents for separation agreements." Also, MassHousing initially estimated two (2) hours were required to determine the applicability of exemptions and make any necessary redactions to the records. MassHousing subsequently reduced this estimate to one (1) hour. I find the estimate of one (1) hour to segregate the records (amounting to fifteen (15) minutes per responsive record) to be reasonable and in compliance with the Regulations. MassHousingfails to satisfY burden with respect to hourly rate assessed for segregation While I find MassHousing has satisfied its burden with respect to the hourly rate for search time as well as the amount of time need to search for and segregate the records, I find MassHousing has failed to satisfy its burden with respect to the hourly rate assessed to segregate the records. See 950 C.M.R. 32.06(1)(c). Even with the subsequent communications by MassHousing it remains unclear why an attorney is required to redact the responsive records. A staff member in the same department at a lower rate could perform redactions with a knowledge of the exemptions to the Public Records Law, with minimal supervision, if any, required by an attorney.

Ms. Beth Elliot, Esq. SPR16/484 Page4 August 10,2016 Request 2 MassHousing provided a record consisting of a complaint to Mr. Herman in response to Request 2. In its July 25 response, MassHousing confirmed to Mr. Herman "that the only such complaint in [MassHousing's] possession has been provided." The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). Accordingly, whereas MassHousing has provided the sole record responsive to Request 2 I find it has satisfied its obligations under the Public Records Law with respect to Request 2. Order I find MassHousing has failed to provide a fee estimate containing detail to support the hourly rate assessed for segregation of responsive records. Accordingly, MassHousing is hereby ordered to review Mr. Herman's request and provide a written response to Mr. Herman, prepared in a manner consistent with this order, the Public Records Law and its Regulations. 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. cc: Mr. Colman Herman