Jamie Folk v. Department of Public Health (SPR 20180476)

The Cornmomwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervzsor of Records April 19,2018 SPR181476 Helen Rush-Lloyd Records Access Officer Executive Office of Wealth and Human Services Department of Public Health 250 Washington Street Boston, MA 02108-4619 Dear Ms. Rush-Lloyd: I have received the petition of Jamie Folk appealing the response of the Executive Office of Health and Human Services - Department of Public Health (Department) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Folk requested a copy of, "all materials obtained by the Office of the Inspector General for their investigation of the Drug Laboratory at the William A. Hinton State Laboratory Institute for 200 12-20 12 report and supplemental report." In an April 9,20 18 response, the Department indicated that in a preliminary search the Department identified approximately 91,528 records that may be responsive; however, 14,000 of those records were previously reviewed and have most likely been provided to him during previous requests. The Department provided a fee estimate for the remaining 77,500 records for search, review, redaction, and assembly of records for production at a total estimated fee of $36,450. As a result of this estimate, Mr. Folk petitioned the Supervisor of Records, and this appeal was opened. Fees 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, 5 10(d). The fees must reflect the actual cost of complying with a particular request. Td, The Department's April 9'h estimate indicates that the tasks necessary to comply with the request are: Search for, identify and retrieve potentially responsive records = 3.5 Hours One Ashburton Place, Room 1719 , Boston, Massachusetts 021 08 (61 7) 727-2832. Fax: (617) 727-5944 sec.state.ma.us/pre pre@sec.state .ma.us

Helen Rush-Lloyd Page 2 April 19, 201 8 Review records for public records exemptions or other protections against disclosure, as mandated by law; perform redactions 1,456 Hours = Assemble records for production = 2.5 Hours Complimentary Hours subtracted from the estimate = -4.0 Hours If Mr. Folk opts for copies, additional employee time will be required to print and prepare hard copies for delivery. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, 5 10(d)(i). The Department will charge five cents ($.05) per page for black and white pages and fifty cents (s.50) per page for color copies. Your fee estimate does not explain whether it has conducted an initial search to gauge a more accurate number af records, and has previously provided Mr. Folk with the estimated costs of search for and compiling the records. It is also unclear \what records or categories of records are in the Department's possession. Agencies may not assess a fee for the first (4) four hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, 5 lO(d)(ii). The Department notes in its estimate that it has subtracted four hours from its estimate. The Department is assessing an hourly rate of $25 per hour, and the total estimated fee for delivery of responsive records is $36,450. 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 Id. record requested, but the fee shall not be more than $25 per hour. However, the Department has not explained whether the hourly rate of $25.00 is the lowest paid hourly rate of the employee who could perform each task. The April fee estimate is also assigning the bulk of the cost for review (segregation) and redaction of records; however, the Department did not cite any state or federal laws that would require the Department to segregate and redact material from the content of the records, and allow the Department to charge fees to do so. 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, 5 lO(d)(iv). See G. L. c. 66, 5 lO(d)(iii); 950 CMR 32.06(4). To the best of my knowledge, the Department has not submitted a petition under G. L. c. 66, 5 1O (d)(iv) with respect to these records. Therefore, if the Department intends to assess a fee for time spent segregating (reviewing) or redacting records responsive to Mr. Folk's request, it it must explain how segregation or redaction is required by law. Finally, it is unclear whether any of the requested records are readily available to allow Mr. Folk to review the records, if he chooses. A review of the April estimate suggests to Mr. Folk that since he has had success in the past in narrowing or tailoring his requests to reduce or eliminate costs. However, it is unclear the Department itself has suggested a reasonable

Helen Rush-Lloyd Page 3 April 19, 2018 modification of the scope of the request, if doing so would enable the Department to produce the records more efficiently and affordably. & G. L. c. 66, 5 lO(b)(vii). I find that the Department has not met its burden under the Public Records Law to support its costs of upwards of $36,000 to produce the responsive records as reasonable. Order Accordingly, the Department is hereby ordered to provide Mr. Folk with a revised fee estimate for the records, consistent with this order, the Public Records Law and its Regulations within ten (1 0) business days. A copy of the Town's revised fee estimate 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Jamie Folk