Jamie Folk v. Office of the Attorney General (SPR 20190004)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 16, 2019 SPR19/0004 Lorraine A.G. Tarrow, Esq. Office of the Attorney General One Ashburton Place Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Jamie Folk appealing the response of the Office of the Attorney General (Office) 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]ll interviews (written, audio and video recordings) and investigation summaries, notes and emails for the Attorney General's investigation into the classification of federally schedule drugs that are not illegal in MA. The drugs in question could include, but aren't limited to, the following Molly, Foxy, Bath Salts, and BZP." Previous appeals This request was the subject of two previous appeals. See SPRl 8/1777 Determination of the Supervisor of Records (December 5, 2018); SPR18/l 108 Determination of the Supervisor of Records (August 8, 2018). I closed SPR18/1777 by upon learning the Office intended to provide Mr. Folk with another response. The Office provided Mr. Folk with a response dated December 19, 2018. Unsatisfied with the Office's response, Mr. Folk petitioned this office and this appeal, SPRl 9/0004, was opened as a result. Current appeal In its December 19th response, the Office indicates that it "had estimated that it would cost $625.00 to complete the processing of [Mr. Folk's] request, and on March 23 [Mr. Folk] provided a check in that amount." The Office further indicates that "[o]n October 12, [it] provided [Mr. Folk] with ninety-six (96) pages of responsive records," and "let [Mr. Folk] know that [it was] still in the process of reviewing two (2) additionally responsive records." The Office states that "on October 19, [it] sent [Mr. Folk] a refund check in the amount of $312.50 for the overestimated amount of chargeable labor." 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

Lorraine A.G. Tarrow, Esq. SPR19/0004 Page2 January 16, 2019 In his petition for appeal, Mr. Folk takes issue with the amount the Office charged him. He indicates that he "was charged 313 dollars for a total of 150 records. Reviewing 150 should not take more than the four fours allotted to [him] by the public records law." 11 Additionally, in its December 19t response, the Office indicates that it "enclose[d] one (1) fifty-four (54) page interview transcript" and states that the "record has been redacted in limited instances under G. L. c. 4, § 7, cl. 26 where it contains: (c) medical information, or information relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; and (n) information that relates to the security or safety of persons or buildings located within the Commonwealth." In his petition for appeal, Mr. Folk indicates that "the records had some heavy redactions," and he is "challenging the rationale behind these redactions. The interview provided was from two years ago and involves a case from over six years ago. How could the safety or security of persons or buildings located within the Commonwealth possibly be at risk from an interview the state did with a lab manager two years ago?" 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, § 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 (4) 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). In its October 12, 2018 response, the Office asserts "the actual amount of chargeable labor required to fulfill [Mr. Folk's] request is 12.5 hours. This accounts for 16.5 hours at the rate of $25.00 per hour ($412.50) to search for, gather, review, and redact information protected by law from the records less 4.0 hours oflabor at the same rate ($100.00)." Despite the Office's response, it is unclear how much time was spent on each task involved in complying with the request: searching, gathering, reviewing, and redacting. Further, based on the Office's responses, it is unclear whether the redactions made are required by law.

Lorraine A.G. Tarrow, Esq. SPR19/0004 Page 3 January 16, 2019 Id. The Office must explain how this fee is reasonable under the Public Records Law. See G. L. C. 66, § lO(d). Exemption (c) Exemption ( c) permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7(26)(c). Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause, relevant to this determination, creates a categorical exemption for personnel and medical information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306,308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Company, 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987). To the extent that portions of the responsive records contain medical information that relates to an identifiable individual, the Office may permissibly withhold such portions from disclosure. Exemption (n) Exemption (n) permits the withholding of: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection ( c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(n).

Lorraine A.G. Tarrow, Esq. SPRI9/0004 Page4 January 16, 2019 Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. It is the duty of the custodian ofrecords to exercise reasonable judgment to determine whether release of the record is likely to jeopardize public safety. The first prong of Exemption (n) examines "whether, and to what degree, the record sought resembles the records listed as examples in the statute;" specifically, the "inquiry is whether, and to what degree, the record is one a terrorist 'would find useful to maximize damage."' People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines "the factual and contextual support for the proposition that disclosure of the record is 'likely to jeopardize public safety.'" Id. at 289-90. The PETA decision further provides that "because the records custodian must exercise 'reasonable judgment' in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian's determination given the context of the particular case." Id. The PETA decision provides that in cases where "the first prong of exemption (n) ... yield[s] a strong resemblance between the record sought and the types of records listed in the statute - for instance, when a requestor seeks access to exactly one of the types of records listed in exemption (n), such as a blueprint or emergency preparedness plan ... with respect to the second prong of exemption (n), the custodian still bears the burden of demonstrating that it exercised 'reasonable judgment' in determining that disclosure of the record is 'likely to jeopardize public safety,' G. L. c. 4, § 7, Twenty-sixth (n). But this burden will be at its lowest." Id. at 290-91. The Office's December 19th response states that portions of the responsive records have been withheld under Exemption (n), but does not explain with sufficient specificity why. The Office has not provided any concrete examples of how the public's safety would be jeopardized by releasing the redacted portions. As such, I find that the Office has not met its burden in proving with specificity how the requested records may be withheld under Exemption (n). Additional responsive records The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § IO(a)(ii) (written response must "identify any public records or categories of public records sought that are within the possession, custody, or control of the agency"). In his petition for appeal, Mr. Folk indicates he "also requested any summary reports associated with this investigation and was only provided with a few emails and one single interview. There should be a summary report with this investigation." Subsequent to the intervention of a member of the Public Records Division staff, I learned the Office confirmed it does not possess any additional records that are responsive to Mr. Folk's request. Accordingly, I find the Office has met its burden with respect to this portion of the appeal.

Lorraine A.G. Tarrow, Esq. SPR19/0004 Page 5 January 16, 2019 Conclusion Accordingly, the Office is to provide Mr. Folk with a response to the request, provided in a manner consistent with this determination, 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. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Jamie Folk