Nimra H. Azmi v. Executive Office of Health & Human Services (SPR 20181345)

The Comlnonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 19,2018 SPR1811345 Patricia M. Scanlan Executive Office of Health & Human Services Office of Medicaid 600 Washington Street, 7thF loor Boston, MA 021 1 1 Dear Ms. Scanlan: I have received the petition of Nimra Azmi, Esq. of Muslim Advocates on behalf of Muslim Justice League appealing the response of the Executive Office of Health & Human Services (Office/EOHHS) to a request for public records. G. L, c. 66, $ IOA; see also 950 C.M.R. 32.08(1). Specifically, on May 29,201 8, Attorney Azmi requested the following records: All records of progress and updates from PEACE Project grantees, including notes of verbal conversations, emails, formal grant reports or other records existing in electronic or hard copy; All records related to meetings of the PEACE Project Grantees hosted by EOHHS on January 25,2017, April 27,2017, and September 7,2017; All records regarding EOHHS site visits to PEACE Project Grantees in March 2017 and August 20 17 ; All university evaluations of PEACE Project Grantees and all records of all related discussions with universities, including but not limited to EOHHS meetings with: a. Boston University and/or Boston College in April 2017; b. Harvard School of Public Health in August 2017; and c. Boston College in August 2017; All records related to an April 20 17, meeting between EOHHS, the Massachusetts Department of Mental Health ("DMH"), and USAO-MA; All records related to the PEACE Project 'Cooperative Agreement' between the USAO-MA and EOHHS; All records related to a 'Community Awareness Briefing on Violent Extremism in the United States Train-the-Presenter (TTP) Program' hosted by USAO-MA in July 20 17, in which an EOHHS representative was a panelist; All records regarding a July 2017, meeting between EOHHS, DMH, USAO-MA, and Dr. Ronald Schouten; 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

Patricia M. Scanlan Page 2 September 19,201 8 9. All records regarding an August 2017 conference call between EOHHS, the Massachusetts Office of Grants Management and Research, Department of Corrections, USAO-MA, and National Governors Association; and 10. All records regarding a 'CVE stakeholder meeting' in September 2015, with EOHHS, USAO-MA, DMH, Department of Public Health, Massachusetts Department of Early Education and Care, Boston Public Schools, and Boston Children' s Hospital." The Office provided a response on June 20,2018 , which included portions of the responsive records in redacted form. The Office claims the redactions were made pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, fj 7(26)(c). The Office's response also included a fee estimate. Objecting to the fee, Attorney Azmi petitioned this office and this appeal, SPR1811345, was opened as a result. While this appeal was pending, the Office provided a supplemental response on September 18 ,201 8 . Fee estimate 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, fj 10(d). The fees must reflect Id. the actual cost of complying with a particular request. 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, fj lO(d)(i). Agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, fj 1O (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 Id. more than $25 per hour. 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, fj lO(d)(iv). See G. L. c. 66, fj lO(d)(ii); 950 C.M.R. 32.06(4). The Ofice's June 2oth and September 18t'z responses In its June 20,201 8 response, the Office provided records responsive to requests 1 and 4 and indicates that it anticipates additional records may be responsive to these requests. The Office further indicates that it "identified 4.22 GB of email records (approximately 7,45 1 emails) and 3.67 of non-email electronically-stored information (ESI) as potentially responsive." The Office indicates that it "must review these records for responsiveness, applicable privileges and exemptions, and then redact information, as required by law. . . ." As such, the Office assessed a fee of $1 1,334.20, which is comprised of 416.3 hours to search, segregate, and redact records at an hourly rate of $25.00.

Patricia M. Scanlan Page 3 September 19,2018 Fees to search for, compile, segregate, redact or reproduce a record request 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, 5 10(d); see also 950 C.M.R. 32.07(2). Additionally, Id. the reasonable fee for reproduction shall not exceed the actual cost of reproducing the record. A municipality 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, 5 10(d); see also 950 C.M.R. 32.06(4). The Office acknowledges that it shall not assess a fee for the first four hours and states that it "has already expended over four (4) hours working on this PRR, including determining potential custodians, collecting responsive records, developing search terms, and issuing [its initial response]." With respect to email records, the Office states that it "estimates 186.3 hours of personnel time will be required to review, redact and assemble records." The Office notes that "[tlhe number of hours has been calculated by estimating an average review and redaction rate of 40 documents per hour (7,45 1/40=186.3). Accordingly, at a rate of $25 per hour, the estimated fee for reviewing, redacting, and producing these records is $4,657.50 (1 86.3 x $25 = $4,657.50)." With respect to non-email, ESI records, the Office states that it "need[s] to use a third party support vendor for processing, which includes the removal of duplicate documents and blank attachments, filtering out irrelevant file types, applying a date range and search terms, and other technology work required to prepare the ESI for uploading into a platform for review." The Office explains that "approximately 50% of ESI will be reduced through the initial filtering and culling. Thereafter, the remaining data would undergo further processes, which include extracting text and metadata from the documents to prepare the ESI for uploading into a review platform." Once this process is over, the Office explains that the remaining ESI will be reviewed for responsiveness and also to determine if certain privileges andlor exemptions apply. With respect to its third party vendor rates, the Office states that for records with a size of 1- 200GB, the "Rate for filteringlculling [is] $30/GB;" "Rate for Processing [is] $2 1O IGB;" [and] "Rate for Loading into platform [is] $30/GB. . . ." Based on these rates, the Office states that its estimated rates for filteringlculling 3.67 GB of data is $1 10.00 ($30 x 3.67); processing 1.84 GB of data is $386.40 ($210 x 1.86); and loading 1.84 GB of data is $55.00 ($30 x. 1.84), totaling an additional $55 1.70. The Office further explains that after the aforementioned process is complete, its staff would have to review the records for responsiveness and applicable privileges and/or exemptions, and apply redactions as required by law. As such, the Office indicates that it estimates that this will require 230 hours at a rate of $25.00 per hour, totaling $5,570.00. The Office explains this rate is based on an assumption that "50% of the ESI data will be removed during the filtering and culling and processing work, leaving approximately 1.84 GB of ESI for review by EOHHS staff.'' The Office further explains that "[oln average, there are 5,000

Patricia M. Scanlan Page 4 September 19,201 8 documents per GB. Multiplying 5,000 by the 1.84 GB results in 9,200 documents. At an average rate of 40 documents per hour, the review would consist of 230 hours." Additionally, the Office indicates that after the review is complete, its third party vendor will generate the production by converting the responsive records to TIFF images. The Office states that "[tlhe rate for the process is $350 per GB or $0.05 per page, whichever is less. . . ." Thus, 1.1 GB x $350/GB = $385. The Office notes that ". . . there is additional cost of $0.01 per page if Bates stamping and endorsing are requested. . . . Accordingly, . . . [tlhe total estimated fee for the collection, processing, review, and production of 4.22 GB of email records and 3.67 GB of non-email ESI is $1 1,344.20 ($4,657.50+$6,686.70=$11,344.20)." Based on the Office's fee estimate, I find the Office has not explained with specificity why the estimated amount of time is required to produce responsive records. Specifically, it is unclear why the Office requires a total of 416.3 hours to search, segregate, and redact records for responsiveness. Although the Office estimates 40 documents per hour, it is unclear why an hour is necessary for reviewing and segregating 40 documents of email records and non-email, ESI records. The Office must provide clarity as to the contents of the email and non-email records. Additionally, although the Office provided a total amount of time for producing responsive records, it is uncertain how many hours were allocated to search, segregate, and redact the records. The Office must clarify this matter. The Office is also advised that under the updated Public Records Law, 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, 5 lO(d)(iv). G. L. c. 66, § lO(d)(ii); 950 C.M.R. 32.06(4). I am not aware that the Office has submitted a petition under G. L. c. 66, 5 10(d)(iv) with respect to these records. Accordingly, whereas the Office has not established that the redactions are required by law, the Office may not charge for redaction of the records. Lowest paid employee In its June 2othr esponse, the Office mentions that its staff would have to review the records for responsiveness and applicable privileges and/or exemptions, and apply redactions as required by law." In its September 1g th response, the Office explains that its "good faith fee estimate includes the third party vendor costs to process certain ESI collected from six (6) custodians, as well as the personnel time to review all ESI collected from the email and non-email sources." The Office states that its "reviewer's time is calculated at $25.00 per hour to review 7.89 GB of data over 416.3 hours. There is no EOHHS employee with the necessary skills able to complete this work who is paid less than $25.00 per hour. . . ."

Patricia M. Scanlan Page 5 September 19,2018 The Office is reminded that although a state agency may assess a fee to search for, compile, segregate, redact or reproduce a record requested, such a fee shall not be more than $25 per hour. G. L. c. 66, fj lO(d)(ii). Waiver of fees Attorney Azmi sought a waiver of fees from the Office. Please be advised the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request. Under the Public Records Law, the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. See G. L. c. 66, 5 10(d)(v); see also 950 C.M.R. 32.07(2)(k) (emphasis added). Modify request In its June 2oth response, the Office indicates "[iln the alternative, if [Attorney Ami] would like to narrow or modify [her] request or explore options for reducing these costs, please contact [the Office] to discuss." In the September 18 ths upplemental response, the Office reiterates that it ". . . remains willing to discuss the scope of MJL's request and to explore potential options to reduce fees. . . ." Accordingly, this office encourages Attorney Azmi and the Office to communicate further to enable the Office to provide responsive records if Attorney Azmi wishes to explore any of these options. For the reasons discussed above, I find the Office must revise its fee estimate or provide further explanation of how the fee assessed in its June 2oth estimate is expressly provided for and consistent with G. L. c. 66, fj 1O (d). 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. Conclusion Accordingly, the Office is ordered to provide Attorney Azmi 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.

Patricia M. Scanlan Page 6 September 19,2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Nimra Azmi, Esq.