Todd Wallack v. Massachusetts Board of Registration in Medicine (SPR 20161024)

The Commonwealth of Massachusetts William Francis Galvin, Secretary ofthe Commonwealth Public Records Division Shawn A. Williams Supervisor of Records December 5, 2016 SPR16/1024 Robert E. Harvey, Esq. Board Counsel Board of Registration in 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 November 10, 2016 response of the Board of Registration in Medicine (BORIM) to a request for 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 appeals and determinations This request was the subject of previous appeals. See SPR16/159 Determination ofthe Supervisor of Records (March 11, 2016); SPR16/214 Determination ofthe Supervisor of Records (April8, 2016); SPR16/341 Determination ofthe Supervisor of Records (June 16, 2016); SPR16/672 Determination ofthe Supervisor ofRecords (September 16, 2016); SPR16/895 Determination ofthe Supervisor of Records (October 25, 2016). In my October 25 determination, I found BORIM failed to meet its statutory and regulatory obligation to justify the fee estimate, including the hourly rate of BORIM staff and the number of hours necessary to provide the records. In compliance with this order, BORIM provided a November 10 revision that reduced the hourly rate to $25.00; the estimate did not reduce the number of hours or provide any additional explanation; Mr. Wallack appealed. Fees A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 1 O(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 One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Robert E. Harvey, Esq. SPR16/1024 Page 2 December 5, 2016 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 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). The April29, 2016 fee estimate provided by BORIM includes 120 hours for Design, 380 hours for Code and Unit Test Program, 196 hours for System Testing, Data Validation, Fix Defects, 80 hours for Validation of Redacted data support and 40 hours for Production Deployment and support. I find BORIM has not provided any explanation to show that any of this time is associated with a "search" and "segregation" of records. Order BORIM is hereby ordered to review Mr. Wallack's request and provide a revised fee estimate, prepared in a manner consistent with the fee requirements of the Public Records Law and its Regulations. A copy of any such response must be rovi d to this office. It is preferable to send an electronic copy of this response to thi offi eat pre@sec.state.ma.us. cc: Todd Wallack