Jamie Folk v. Department of Public Health (SPR 20180892)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 2, 2018 SPRlS/892 Helen Rush-Lloyd Records Access Officer Executive Office of Health 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 June 11, 2018 response of the Department of Public Health (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on March 26, 2018 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 2002-2012 report and supplemental report." Previous appeals The responsive records were the subject of three (3) previous appeals. See SPR18/476; SPR18/654 and SPR18/732 Determinations of the Supervisor of Records (Supervisor) (April 19, 2018 and May 22, 2018). I note that both SPR18/654 and SPR18/732 were incorporated into the May 22nd determination. In my May 22nd determination, I ordered the Department to revise its fee estimate in excess of $36,000 to provide Mr. Folk with the responsive records, and to address the following outstanding issues: 1) Whether it conducted an initial search for, and compilation of, the records; 2) Whether the $25.00 per hour was the lowest paid hourly rate of the employee who could perform each task; 3) What state and/or federal laws require the Department to segregate and redact material from the content of the records in order to assess fees for such tasks; 4) Whether any of the records are readily available to allow for review; and 5) Whether the Department has suggested a reasonable modification of the scope of the request. 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 SPR18/892 Page 2 July 2, 2018 On June 11, 2018, the Department provided a response to my May 2211d order, but did not revise the fee estimate in excess of $36,000. As a result of the Department's June 11th response, Mr. Folk petitioned the Supervisor, and the current appeal, SPRl 8/892, was opened. After this appeal was opened, on June 29t\ Deputy General Counsel, John "Jay" Pina, III provided Mr. Folk with a further response indicating that the Department, in an.effort to assist Mr. Folk in reducing the costs, has identified 11,804 records (61,728 pages) which have been saved on a thumb-drive that is being sent via postal mail. 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, § IO(d). The fees must reflect the actual cost of complying with a particular request. Id. Issue 1 - Search: The Department's June 11, 2018 response indicates that it conducted an initial search for, and compilation of, approximately 91,528 records in conjunction with the Office of the Inspector General's (OIG) investigation; however, the records provided to the OIG were provided without any review or redaction. It is my understanding that records were provided to the OIG in response to an investigation, not as the result of a public records request. As the Department previously stated in its prior response of May 3rd, the Department already provided Mr. Folk with a number of the approximately 14,000 of the 91,528 total records that had previously been produced to Mr. Folk or through other requests for public records. In your June 11th response, you state under Issue 4 that the Department is waiving the search and compilation time of 3.5 hours to provide Mr. Folk with the balance of the 14,000 records. In Attorney Pina's June 29th response, he indicates that the Department's search has identified 11,804 records that are responsive to Mr. Folk's March 26th request, and that the Department is waiving any fees associated with this production. The Department has saved these records onto a thumb-drive which is being sent to Mr. Folk via postal mail. Issue 2 - Hourly Rate: The Department's June 11th response confirms that the Department is charging the lowest hourly rate by assessing the maximum of $25.00 per hour allowed by the Public Records Law. In its response, the Department explains, as it did in its May 3rd response, that the Department utilizes an e-discovery vendor to search for, identify, retrieve, compile, and process records, which costs the Department $150.00 per hour. However, the Department only assessed the $25.00 maximum for public records requests. In addition, the Department has previously explained and confirms in its June 11th response that the task of segregating and redacting the records, due to restricted and exempt material in the records not yet reviewed and redacted, will

Helen Rush-Lloyd SPR18/892 Page 3 July 2, 2018 be undertaken by the Department's paralegals and attorneys who earn more than the $25.00 maximum allowed by the Public Records Law. See G. L. c. 66, § lO(d)(ii)(A); 950 C.M.R. 32.08(2). To the extent that responsive records require redactions by law, I find that the Department has met its burden of supporting its $25.00 per hour rate for the task of segregating and redacting those records. Issues 3 and 8 - Fees for Segregation and Redaction (under state/federal laws) The Department has asserted in its May 3rd and June 11th responses that it may find information that is exempt under Exemptions (b ), ( c) and (n) in the responsive records. Please note, the Department may not include the fees for segregation and redaction 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)(iii); 950 C.M.R. 32.06(4). While the Department has also claimed that requested records may contain CORI and attorney-client privileged materials, the Department has not demonstrated that all of the responsive. records are likely to contain information the redaction of which is required by law. Your June 11th response states that the OIG sought all records related to the Drug Laboratory at the Hinton State Laboratory Institute or its employees, including but not limited to "communications, staff lists, organizational charts, personnel files, payroll records, audits access records and all other documents related to the DPH's investigation of the Drug Lab." Further, the Department explains that it provided certain emails related to eight identified individuals, as well as emails containing the term, "dry-lab." The Department contends that providing categories of records does not diminish the amount of time required to review the remaining responsive records. The Department's June 29th response indicates that due to the broad scope of Mr. Folk's March 26th request, the requested records relate to seventeen (17) Department laboratories in addition to the drug lab. Attorney Pina asserts, "[t]hese other laboratories focused on public health issues such as lead poisoning in children, influenza, rabies, tuberculosis and sexually transmitted diseases, to name a few." It is unclear whether these are the types ofrecords Mr. Folk is seeking. The Department indicates these records have not been reviewed for exemptions, privileges and confidentiality. It is uncertain whether these types of records are likely to contain CORI, attorney-client privileged materials or information required by law to be redacted. Under the Public Records Law, an agency must "identify any records, categories of records or portions of records that the agency intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... " G. L. c. 66, § 1O (b )(iv); Flatley, 419 Mass. at 511; see also 950 C.M.R. 3206(3)(4-6). Given the broad nature of the request and significant number ofresponsive records, it is unclear the categories of records responsive to this request; how many remaining records fall under each category. Further, it is uncertain how many categories of records the Department believes likely to

Helen Rush-Lloyd SPR18/892 Page 4 July 2, 2018 contain information falling under the CORI Act, the attorney-client privilege or any state or federal laws that restrict disclosure of the records responsive to the request. Without further information about the categories of records the Department is withholding and the specific reasons for the withholding, this office cannot determine whether the fee estimated for segregation and redaction is reasonable in compliance with the law. Consequently, in order to facilitate a determination, the Department must provide Mr. Folk with an index ofrecords or categories ofrecords, including an identification of which records or categories are likely to contain information subject to redactions that are required by law. See G. L. c. 66, § 1O (b )(iv); G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). Issues 4 and 6 - Readily available records; estimate for the previously provided records In my May 22nd order, I requested that the Department explain whether any of the identified records are readily available for Mr. Folk to review. Your June 11th response only discussed that a majority of the records of the total of all the records were previously provided to Mr. Folk. Nor does the Department's June 29th response indicate whether it possesses any records that are readily available for Mr. Folk to review before obtaining any copies. The Department was also asked whether it provided Mr. Folk with an estimate for the previously provided records. Your June 11th response indicates that the Department did not provide an estimate before providing those 14,000 records because it considered those records responsive to, and a part of, the present public records request. (Request of March 26, 2018 - DPH Tracking No. OGC-2018-2). In his June 29th response, Attorney Pina indicates that over the past years, the Department provided Mr. Folk with records at no cost in response to his several requests, and that those records had been reviewed and redacted prior to disclosure. Attorney Pina also indicates that the Department is sending Mr. Folk 11,804 records on a thumb-drive, that have been reviewed and redacted, and that the Department is waiving any fees associated with the production. It is unclear whether this production entirely satisfies Mr. Folk's March 26th request, because the Department did not identify what records or categories of records are involved in this production. Issues 5 and 7 - Suggest modification; identify records or categories of responsive records The Department indicated in its June 11th response that it offered Mr. Folk the opportunity to discuss the request to determine if there was a way to narrow the scope. The Department contends that because the request was for all materials, the Department was unable to suggest a reasonable modification. In his June 29th response, Attorney Pina states, "[a]s we have stated repeatedly, the Department is ready and willing to discuss how your request could be more narrowly tailored to reduce the costs, but you have not accepted this offer. For instance, rather than requesting all materials produced to the OIG, we can work together to fashion requests based on specific time periods or specific topic areas." This office encourages the Department and Mr. Folk to communicate further to better enable an efficient and cost-effective response to the request.

Helen Rush-Lloyd SPR18/892 Page 5 July 2, 2018 Custodial index ofr ecords In order to facilitate closure of this matter and to aid in the cooperation of the parties, I find that the Department must provide Mr. Folk with a custodial index of the records and the basis of the exemption claims for each record or each category of the records. "The Supervisor may require a records access officer or custodian to compile an index of the requested records within the context of a public records appeal under 950 C.M.R. 32.08." See 950 C.M.R. 32.08(5)(a),(b). I find that the custodial index of the records and/or categories of records may allow Mr. Folk to determine which types ofrecords are responsive to his request and how much of the fee estimate is attributed to each type. This may allow for narrowing or modification of the request, and revision of the fee estimate. Order Accordingly, the Department is ordered to provide Mr. Folk with a custodial index of the records in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of the custodial index 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: Mr. Jamie Folk John "Jay" Pina, III, Esq., Deputy General Counsel