Jamie Folk v. Department of Public Health (SPR 20190029)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 18, 2019 SPR19/029 Helen Rush-Lloyd Records Access Officer Executive Office of Health and Human Services 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, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Folk requested: "a list of all the police departments and names of Assistant District Attorneys who were prosecuting drug offenses for all the drugs associated with the May 2011 and June 2011 breaches of protocol that Annie Dookhan had at the Hinton Lab." In a November 20, 2018 response, Department Deputy General Counsel, John "Jay" Pina III informed Mr. Folk that after an initial search, the Department found readily available information regarding the May and June 2011 breaches of protocol involving 120 samples. The 120 samples involved Quincy Police Department, Wellesley Police Department, Dedham Police Department and Cohasset Police Department, all under the jurisdiction of the Norfolk County District Attorney's Office. The Department's November 20th response further states, "[the Department] has no responsive record that lists the Assistant District Attorneys (ADAs) associated with the 120 samples. The information may exist in individual separate records." The Department provided Mr. Folk with a $4200.00 written estimate for the cost of searching through individual records, and reviewing the records to compile the names of ADA's and District Attorney's offices that were involved in the breach of protocol by an identified person; and to redact any Criminal Offender Record Information (CORI) contained in the records that may be provided. As a result of the estimate, on January 4, 2019, Mr. Folk petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his petition, Mr. Folk states, "I thought searching for responsive records was done free of charge. How do they not have a database that 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 SPR19/029 Page 2 January 18, 2019 lists every sample associated with the [breaches] of protocol[?] The total number of samples was 84. There is no way it would take 12 hours just to determine how many cases were impacted." Under the Public Records Law, the Department is not required to create a list, database or any record in response to a public records request. The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26); see also 32 Op. Att'y Gen. 157, 165 (May 18, 1977). 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, § lO(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents 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). Agencies may not assess a fee for the first four hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d )(ii). The Department's November 20, 2018 fee estimate reveals that the Department did not assess a fee for the first 4 hours of employee time. The Department's November 20th fee estimate, drafted by Attorney Pina, states: • Search for, identify, and retrieve potentially responsive information: 12.0 Hrs. • Continue to review records for determination of prosecuting [ADAs]: 168.0 Hrs. • Assemble records for production: 0.0 Hrs. • Complementary hours (first 4 hours of time waived): -4.0 Hrs. TOTAL HOURS: 168.0 Hrs. Regarding the initial 12 hours of time, Attorney Pina explains, "[t]his time reflects my initial search, review and the information provided herein. The Department will waive fees, in excess of the 4 complimentary hours associated with this initial search." The Department's response indicates that it does not have a record responsive to Mr. Folk's request for a list of the police departments along with the names of the AD As who were prosecuting the drug offenses for all the drugs associated with the May 2011 and June 2011 breaches of protocol by an identified person at the Hinton Lab. Attorney Pina informed Mr. Folk that it must search for and review individual records to compile such information to satisfy Mr. Folk's request. To that end, the Department provided the estimate. In explaining the assessment of 168 hours of time to continue to review records to determine the names of the AD As who prosecuted the breaches of protocol and the particular police departments and District Attorney's offices, Attorney Pina states, "I spent well over a day

Helen Rush-Lloyd SPR19/029 Page 3 January 18, 2019 searching for and reviewing records to determine that one Wellesley drug case from the June breach was being prosecuted by Norfolk County ADA Michael Thaler and four Quincy drug cases from the June breach involving seven samples were being prosecuted by Norfolk County ADAs Jaclyn Sexton (2 cases); Debra Payton and Michael McGee. My initial 12 hours of search and review time determined ADA s for 8 samples; resulting in an averaged 1.5 hours of search and review time per sample. Accordingly, this estimate assumes a review rate of approximately 1.5 hours per remaining samples." I find that the Department's November estimate, for 168 hours of employee time, does not explain what individual records will be necessary to cull and review in order to provide Mr. Folk with the particular information he requested. I find that the Department must clarify what individual records it believes may contain information that may be responsive to the request, and the process that the Department will continue with for the estimate of 168 hours of employee time. 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. G. L. c. 66, § 10(d )(ii). The estimate cites CORI as a statute that may be applicable to redact certain information within the content of the records. The Department asserts, "[fjor example by the very nature of the information sought, many responsive records would contain information concerning identifiable individuals and relate to a criminal proceeding or other consequent proceedings." Citing G. L. c. 6, §§ 167 and 172 (CORI Act). 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 under a petition under G. L. c. 66, § IO(d)(iv). See G. L. c. 66, § lO(d)(ii); 950 C.M.R. 32.06(4). While segregation and/or redacting of CORI information is required by law, it is unclear from the Department's November 20th estimate, how redaction of CORI would be necessary to these responsive records. I find that the Department must clarify its estimate regarding any redaction of CORI. Finally, the Department informed Mr. Folk and this office that it is willing to discuss the request with Mr. Folk to see if the request could be modified to enable a more efficient and affordable production. Conclusion Accordingly, the Department is ordered to provide a supplemental response to Mr. Folk to clarify its fee estimate, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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.

Helen Rush-Lloyd SPR19/029 Page4 January 18, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Jamie Folk John Pina, III, Esq.,