Kathy Curran v. Montachusett Regional Transit Authority (SPR 20170512)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April24, 2017 SPR17/512 Bonnie J. Mahoney Records Access Officer Montachusett R TA 1427R Water Street Fitchburg, MA 01420 Dear Ms. Mahoney: I have received your petition on behalf of the Montachusett Regional Transit Authority (MART) requesting to charge for time spent segregating or redacting public records in responding to a request made by Kathy Curran of WCVB 5. G. L. c. 66, § 10(d)(iv). As required by law, MART provided a copy of this petition to the requester. G. L. c. 66, § 10(d)(iv)(2). Ms. Curran requested "[a]ll complaints filed against contractors and subcontractors of the Montachusett Regional Transit Authority that provide non-emergency medical transportation for consumer/clients of state Human Services Transportation programs including MassHealth from January 1, 2016." I understand Ms. Curran also requested records related to terminated vendors, but this petition only applies to her request for complaints. In its petition dated April 14, 2017, MART seeks an extension of time to produce records as well as permission to charge for time spent redacting and segregating responsive records. In a telephone conversation with a Public Records Division staff attorney you confirmed MART no longer seeks an extension of time. Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10 ( d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating 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

Bonnie J. Mahoney SPR17/512 Page 2 April 24, 2017 circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality's petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10 ( d)(i). Municipalities may not assess a fee for the first 2 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10 ( d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10 ( d)(iv) . A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 CMR 32.06(4). Current petition In its petition dated April 14, 201 7, MART seeks permission to charge for time spent segregating and redacting records responsive to Ms. Curran's request for complaints. MART explains "there is mention of consumer information in the comment and response sections of the records." You indicate it "will take time to redact so that MART stays HIPAA complaint (prevent unlawful disclosure)." You explain there are approximately 29,000 responsive records.

Bonnie J. Mahoney SPR17/512 Page 3 April 24, 2017 In subsequent correspondence dated April20, 2017 you explain "[a]lthough this is stored in database format and the records can be queried to omit the HIP AA sensitive fields; there are comment fields from both the complainant and the vendor which contain HIP AA sensitive details." In an email dated April21, 2017 you explain "[t]he redacted information contained in the comment fields possibly contain names and/or addresses of MassHealth clients, their home or medical appointment locations. To leave this information un-redacted would result in a HIPAA violation. This could also fall under [E]xemption (c)." Given these records include information relating to identifying information about MassHealth clients, MART has met its burden to explain how the request could not prudently be completed without redaction or segregation under applicable statutes. See G. L. c. 66, § 10 (d )(iv). Therefore, MART may assess a fee for the time spent to segregate and redact these requested records. MART estimates it will take fifty hours to produce the records. MART's April 21st email explains this estimate "is based upon the fact that it took 15 hours to redact the first 6,000 records. It would be too hard to estimate an average time per complaint, as each complaint varies greatly depending upon the complainant and the vendor responding." You also note the cost of providing records would be reduced if it removed the comment fields from the responsive records. I find MART has not met its burden to explain why fifty hours is necessary to produce responsive records. For example, it is unclear how much content is in each comment field, nor is it clear what method MART used when taking fifteen hours to review 6,000 records. Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition as well as its subsequent correspondence, MART is permitted to charge for time spent segregating and redacting the requested records. However, MART has not demonstrated the need for fifty hours to produce the records. See G. L. c. 66, § 10 ( d)(iv) (requiring the amount of the fee must be reasonable). When preparing a fee estimate for the provision of the requested records, MART must reduce the amount of time charged for producing the records, or provide more detail explaining why this amount of time is necessary. MART must also provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. MART shall provide a response to Ms. Curran within five business days of receipt of this determination. See 950 CMR 32.06(4 )(h)( 4). Ms. Curran may appeal MART's fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note the requester has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G.L. c. 66, § 1O A.

Bonnie J. Mahoney SPR17/512 Page4 April 24, 2017 Sincerely, Rebecca S. Murray Supervisor of Records cc: Kathy Curran