Andrew McIsaac v. Department of Mental Health (SPR 20171621)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 22, 2017 SPR17/1621 Misael Garcia Paralegal Massachusetts Department of Mental Health 25 Staniford Street . Boston, MA 02114 Mr. Garcia: I have received the petition of Andrew Mclsaac appealing the response of the Massachusetts Department of Mental Health (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Mclsaac requested documents regarding all complaints and associated investigation reports involving The Quincy Center inpatient unit of Arbour Hospital. In a letter dated November 15, 2017, the Department responded to his request providing a fee estimate. Fee estimates If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2)(b) (a records access officer shall provide a written, itemized, good faith estimate). Once fees are paid, a records access officer must provide the responsive records. An agency 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). Agencies may not assess a fee for the first four hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d )(ii). Where appropriate, agencies 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. 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

Ms. Misael Garcia SPRl 7/1621 Page 2 November 22, 2017 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, § lO(d)(iv). See G. L. c. 66, § lO(d)(ii); 950 CMR 32.06(4). Fees to search for, compile, segregate, redact or reproduce a record request In a letter dated November 15, 2017, the Department provided Mr. Mcisaac with a fee estimate including a $772.50 charge to "review records for responsiveness and public records exemptions or other protections against disclosure; assemble records for production." The Department explains it requires "production of public records" at a rate of "$25.00/hour," and indicates the first four hours of work completed were free of charge. The Regulations provide that in cases where necessary to reproduce the requested records a records access officer may charge a fee to search for, compile, segregate, redact or reproduce a record requested based on the hourly rate of the lowest paid employee who is capable of performing the task. G. L. c. 66, § lO(d); see also 950 C.M.R. 32.07(2). Additionally, the reasonable fee for reproduction shall not exceed the actual cost of reproducing the record. Id. An agency may not charge for segregation and redaction unless required by law or a petition has been filed and approved by the Supervisor of Records. G. L. c. 66, § lO(d}; see also 950 C.M.R. 32.06(4). ! The Department's fee estimate indicates it will require "30.9 hours" to "review records for responsiveness and public records exemptions or other protections against disclosure; assemble records for production" at a rate of "$25.00/hour." The Department has not explained with specificity why the indicated amount of time is required to produce the responsive records. Specifically, it is unclear why the Department requires 30.9 hours to "review records for responsiveness and public records exemptions or other protections against disclosure; assemble records for production." Further, the Department has not explained whether it has used the hourly rate of the lowest paid employee capable of performing the task. See 950 C.M.R. 32.07(2}(i). Additionally, the Department has not identified and explained the applicability of any law requiring segregation or redaction which would permit the Department to assess fees for segregation and redaction. See G. L. c. 66, § lO(d); see also 950 CMR 32.06(4). I am not aware that our office has received a petition to assess a fee for segregation or redaction; therefore, the Department may not charge the requester a fee for segregation or redaction unless the Department can demonstrate such segregation or redaction is required by law. See 950 C.M.R. 32.07(2)(m)(4 ). Accordingly, I find the Department must revise its fee or provide a further explanation of how the fee assessed is consistent with G. L. c. 66, § lO(d).

Ms. Misael Garcia SPRl 7/1621 Page 3 November 22, 2017 Conclusion Accordingly, the Department has indicated that it will provide Mr. Mclsaac with a supplemental response. I will consider this appeal closed with the proviso that the Department provides a response in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. 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. Mr. Mclsaac may appeal the substantive nature of the response within ninety calendar days. 950 C.M.R. 32.08(1). Sincerely, ~~ Rebecca S. Murray Supervisor of Records QC: Mr. Andrew Mclsaac