Erin Smith v. Department of Early Education and Care (SPR 20171749)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 5, 2018 SPR17/1749 Kathleen Hart Department of Early Education and Care 51 Sleeper Street Boston, MA 02210 Dear Ms. Hart: I have received the petition of Erin Smith of Boston 25 News appealing the response of the Department of Early Education and Care (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on December 4, 2017, Ms. Smith requested the following records: "• All investigations, including but not limited to all investigation reports created by the Department of Early Education and Care, for licensed programs for Civitas Solutions, Inc., Mentor Network, National Mentor Holdings, Inc. or any subsidiaries or affiliates from Jan. 1, 2013 to present. • All licensing studies done by the Department of Early Education and Care, for Licensed programs for Civitas Solutions, Inc., Mentor Network, National Mentor Holdings, Inc. or any subsidiaries or affiliates from Jan. 1, 2013 to present." Ms. Smith subsequently requested the following information: "1. How many complaints has EEC received for licensed programs for Civitas Solutions, Inc., Mentor Network, National Mentor Holdings, Inc. or any subsidiaries or affiliates from Jan. 1, 2013 to present. 2. How many of those complaints have resulted in EEC investigations?" After multiple email correspondence between the Department and Ms. Smith about the Department's inability to locate responsive records, Ms. Smith provided the Department with a list of all affiliated programs (the list) under the Mentor Network. The Department provided a response to Ms. Smith on December 22, 2017, providing a fee estimate. Unsatisfied with the Department's response, Ms. Smith petitioned this office and this appeal, SPR17/1749, was opened as a result. 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

Kathleen Hart SPR17/1749 Page 2 January 5, 2018 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, § IOA(d); 950 C.M.R. 32.03(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, § IO(b)(iv); 950 C.M.R. 32.06(3); see also_Dist. 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 as required by law, 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. See G. L. c. 66, § IO(b)(iv). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § IO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's December 22nd response In its December 22nd response, the Department indicated that it provided some records, license files that contain "the current operational status (i.e., open or closed), date of closure (if applicable), license ID, program ID, umbrella name, umbrella address, and umbrella ID." The Department also indicated that some records may be withheld or subject to redactions and indicated that it would charge for "segregation, redaction and compilation costs associated with the production of the records, at a rate of $25 per hour." The Department indicated that "[a]s permitted under 950 C.M.R. 32.06(2)(g), EEC suggests using the time period of January 1, 2013 to December 18, 2017 for the completion of dates of the EEC licensing studies that you are seeking for the programs in your lists." The Department also indicated that "[t]here are seven programs in your lists that have one or more EEC licensing studies that were completed during this period. The estimated cost to provide these records is $125, based on 9 hours of staff time to compile, segregate and redact the records minus the first 4 hours of labor provided at no cost (i.e., 5 hours times $25 per hour)." G. L. c. 66, § IO(e) provides that "[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b)." See also 950 C.M.R. 32.06(2)(c) (indicating that "a records access. officer shall not charge a fee for the provision of a public record unless the records access officer responded to the requester within ten business days under M.G.L. c. 66, § 1 O(b )"). G. L. c. 66, § 1O (b) provides that a written response must be provided not later than ten business days after the initial receipt of the request. This response shall contain certain

Kathleen Hart SPRl 7/1749 Page 3 January 5, 2018 information, including, a confirmation of receipt of the request, and, where applicable, identify a reasonable timeframe to produce records, suggest a modification of the scope of the request, and include an itemized fee estimate. See G. L. c. 66, § 1O (b ). The Department's December 22nd response indicated that it was responding to Ms. Smith's December 15th request, which is the day Ms. Smith provided the Department with the list of all affiliated programs under the Mentor Network. However, Ms. Smith indicates that she did not submit a new request when she provided the Department with the list, and reiterates that she is requesting documents under the December 4, 2017 request. Ms. Smith also claims that "[i]f you search 'Mentor' under 'Program Name' search field in your own internal EEC program search database, you will come up with the exact same list of program names and addresses" that she supplied to the Department. Therefore based on a review of the file and Ms. Smith's petition, I find the Department must explain how it responded to Ms. Smith's December 4th request in a manner consistent with G. L. c. 66, § lO(b) and 950 C.M.R. 32.06(2)(c). Failure to demonstrate the compliance with these statutory and regulatory provisions may prevent the Department from charging a fee for responsive records. Fee estimates 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, § lO(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. 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 )(ii); 950 C.M.R. 32.06(4). Fees to search for, compile, segregate, redact or reproduce a record request In the December 22nd fee estimate the Department explains that there are approximately seven programs that have one or more EEC licensing studies during the time period that would be responsive to Ms. Smith's request. You estimate it would take approximately 9 hours of staff time to compile, segregate and redact the records minus the first four hours of labor provided at a cost of an hourly rate of $25. It appears the Department is including time spent segregating or redacting records in this

Kathleen Hart SPRl 7/1749 Page 4 January 5, 2018 fee estimate. Please note that under the updated Public Records Law effective January 1, 2017, a fee may 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 C.M.R. 32.06(4). I am not aware that the Department has submitted a petition under G. L. c. 66, § 10(d )(iv). Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records; therefore, the Department may not currently seek permission to assess fees for this December 4th request through a petition under G. L. c. 66, § lO(d)(iv). See 950 CMR 32.06(4)(g). Further, it is uncertain how segregation or redaction is required by law in this matter. For example, it is not clear what type of information is contained in the responsive records, and which statutes, if any, require segregation or redaction. Therefore, I find the Department has not met its burden under the updated Public Records Law to justify the December 22nd fee estimate. If the Department intends to assess a fee for time spent segregating or redacting for the production ofrecords responsive to Ms. Smith's December 4th request, it must explain how segregation or redaction is required by law. Employee time 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, § IO(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. Although the Department indicates that it would charge an hourly rate of $25, it is unclear whether the Department has used the hourly rate of the lowest paid employee capable of performing the task. See G. L. c. 66, § IO(d)(ii); 950 C.M.R. 32.07(2)(i). The Department has not explained with specificity why the indicated amount of time is required to produce the responsive records. Specifically, it has not been demonstrated why nine hours is required to search for and redact responsive records. I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Order Accordingly, the Department is hereby ordered to provide Ms. Smith with a response to the request, provided 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.

Kathleen Hart SPR17/1749 Page 5 January 5, 2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Erin Smith