Jamie Folk v. Department of Public Health (SPR 20180732)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 22, 2018 SPR18/654; SPR18/732 Helen Rush-Lloyd Records Access Officer Department of Public Health 250 Washington Street Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition of Jamie Folk appealing the response of the Department of Public Health (Department) to a request for public records. G. L. c. 66, § lOA; 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 (OIG) for their investigation of the drug laboratory at the William A. Hinton Laboratory Institute 2002 - 2012 report and supplementary report." Prior appeal The responsive records and fee estimate were the subject of a prior appeal. See SPR18/476 Determination of the Supervisor (April 19, 2018). In my April 19th determination, I found that the Department did not meet its burden of specificity in assessing a fee estimate in excess of $36,000 to provide Mr. Folk with responsive records. In the prior appeal, the Department did not explain the following: • Whether it conducted an initial search for, and compilation of, the records; • Whether the $25.00 per hour was the lowest paid hourly rate of the employee who could perform each task; • What state and/or federal laws require the Department to segregate (review) and redact material from the content of the records in order to assess fees for such tasks; • Whether any of the records are readily available to allow for review; and • Whether the Department has suggested a reasonable modification of the scope of the request. I ordered the Department to address each of issues presented above and to revise its fee estimate consistent with my April 19th determination. On May 3rd, the Department provided Mr. 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

Helen Rush-Lloyd SPRl 8/654; SPRI 8/732 Page 2 May 22, 2018 Folk with another response; however, the Department did not revise its fee estimate. As a result, on May 8th Mr. Folk petitioned the Supervisor, and the current appeal, SPR18/654, was opened. Current appeal - SPRJ 8/654 (SPRJ 8/732 incorporated into SPRJ 8/654) In his May 8th petition to the Supervisor, Mr. Folk contends that the Department previously pulled the records, therefore, it should not take much time to disseminate the records to him. 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, § lO(d). The fees must reflect the actual cost of complying with a particular request. Id. The Department's estimate, in its April 9th and May 3rd responses, indicates that the tasks necessary to comply with the request are: • Search for, identify and retrieve potentially responsive records = 3 .5 Hours • 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 The Department's May 3rd response indicates that while the tasks would be performed by paralegals and attorneys due to the sensitive nature of the information. While the hourly rates of these employees exceed $25 per hour, the Department is charging the maximum allowed by the Public Records Law. See G. L. c. 66, § lO(d)(ii)(A); 950 C.M.R. 32.08(2). The Department intends to provide the records electronically, via email. If the volume of documents is too large to send via email, or Mr. Folk is unable to receive production via email, the Department is able to use electronic media storage and would advise Mr. Folk of the cost. Additionally, the Department's estimate included the cost to provide any records that would be requested to be printed as hard copies. A maximum fee of five cents ($.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). The Department has assessed five cents ($.05) per page for black and white pages and fifty cents ($.50) per page for color copies. It remains unclear whether Mr. Folk was provided with a separate estimate to account for the 14,000 records that were already provided. The Department has not identified what records or categories ofrecords were previously provided to Mr. Folk with the 14,000 record production. Nor has the Department identified what records or categories ofrecords the Department has in its possession to account for the 77,528 responsive records that comprise the outstanding balance from the original 91,258 records identified in the search by the outside vendor used by the

Helen Rush-Lloyd SPRl 8/654; SPRl 8/732 Page 3 May 22, 2018 Department. The Department only states that "a majority of the 77,528 records are emails." A written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... " See G. L. c. 66, § lO(d)(iv); see also 950 C.M.R. 32.06(3). In its May 3rd response, the Department continues to assign the bulk of the cost for review (segregation) and redaction ofrecords, specifically, 1,456 hours of time. The Department bases its number of hours on approximately 1+ minute of time to segregate and redact 50 records per hour. The Department indicates that in its May 3rd response that it must review and redact, where necessary, to comply with state and federal laws and regulations. You cite examples such as the Criminal Offender Record Information (CORI) Act, the Fair Information Practices Act (FIP A), Exemption (b ), Exemption ( c ), Exemption (n) and privileges for attorney-client communications and attorney work product. Please note 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, § IO(d)(iii); 950 C.M.R. 32.06(4). To the best of my knowledge and the Department's May 3rd response does not state otherwise, the Department did not submit a petition under G. L. c. 66, § lO(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 cannot assess a fee for segregation or redaction of any Exemption (b ), Exemption (c ), Exemption (n), as the Public Records Law exemptions are discretionary, not required by law. Further, the Department has not established how the CORI Act, or the attorney-client privilege would apply to responsive records. With respect to the applicability of the CORI Act, it should be noted that as part of the criminal justice reform bill recently signed by Governor Baker on April 13, 2018, there has been an update to the definition of CORI. Section 3 of Chapter 69 of the Acts of 2018. Given that it was signed with an emergency preamble, this is the current definition of CORI: "Criminal offender record information", records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or

Helen Rush-Lloyd SPRl 8/654; SPRl 8/732 Page 4 May 22, 2018 intelligence information. Criminal offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 is adjudicated as an adult, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167 ( emphasis added). It is unclear how responsive records are exempt under the CORI Act, therefore it is unclear how segregation or redaction is required by law. Specifically, the Department has not established whether records contain "information recorded in criminal proceedings that are not dismissed before arraignment," as described above. In light this change to the definition of CORI, the Department may provide supplemental information addressing this issue. Finally, in my April 19th order, I asked the Department to state whether any of the requested records are readily available to allow Mr. Folk to review the records, upon request. In its May 3rd response, and to date, the Department has not stated whether it does have any records that are readily available that it could allow Mr. Folk to review and possibly receive copies. I asked the Department to advise this office whether the Department had sought a reasonable modification of the request. In its May 3rd response, the Department indicates that it offered Mr. Folk an opportunity to discuss the request, and determine ifthere was any way to narrow the scope. It is my understanding that Mr. Folk has not availed himself of the Department's invitation to do so. Furthermore, the Department contends that since the request seeks "all materials" that the OIG obtained from the Department during its investigation, without Mr. Folk's participation, the Department believes that it is impossible for it to suggest a reasonable modification. This office encourages Mr. Folk to contact the Department to discuss modifying the scope of the request to enable a more efficient and affordable production. See G. L. c. 66, § 1O (b )(vii). For the reasons discussed above, 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. Order Accordingly, the Department is 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 business days. A copy of the Department'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.

Helen Rush-Lloyd SPRl 8/654; SPRl 8/732 Page 5 May 22, 2018 Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Jamie Folk