Todd Wallack v. Massachusetts Commission Against Discrimination (SPR 20190257)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 26, 2019 SPR19/0257 Theresa Lepore Records Access Officer Massachusetts Commission Against Discrimination One Ashburton Place, Room 601 Boston, MA 02108 Dear Ms. Lepore: I have received the petition of Todd Wallack of the Boston Globe appealing the response of the Massachusetts Commission Against Discrimination (Commission) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on January 14, 2019, Mr. Wallack requested" ... an updated copy of the [Commission's] electronic index of complaints (including both active and inactive complaints)." The Commission responded on January 29, 2019, including a fee estimate. Unsatisfied with the Commission's response, Mr. Wallack petitioned this office and this appeal, SPR19/0257, was opened as a result. It appears Mr. Wallack is only appealing the fee estimate. While this appeal was pending, the Commission provided a supplemental response on February 25, 2019. Fee estimates -Agencies 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 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 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

Theresa Lepore SPR19/0257 Page 2 February 26, 2019 Records under a petition under G. L. c. 66, § IO(d)(iv). See G. L. c. 66, § IO(d)(ii); 950 CMR 32.06(4). The Commission's January 29th response In its January 29, 2019 response, the Commission states" ... certain documents responsive to [Mr. Wallack's] request for 'active complaints' will be withheld pursuant to G.L. c. 4, § 7(26)(f) ... See also [the Commission's] Regulations, 804 CMR 1.04, which state, in relevant part, 'except as otherwise provided in this Regulation, the record in every charge pending before the Commission shall be confidential and exempt from M.G.L. c. 66 and 66A pursuant to G.L. c. 4, § 7 (26)(f).' Therefore, by operation of G.L. c. 4, § 7(26)(f) and 804 CMR 1.04, a portion of the requested records are exempt from disclosure and will be withheld ...." The Commission further states that "[p]ursuant to G.L. c. 66, § IO(b), the Commission, as an agency in possession of public records, is obligated to respond to [Mr. Wallack's] request with an estimate of any fees that may be charged to produce the records sought." The Commission explains that" ... the staff member who created this log in the past is no longer at the Commission. For that reason, [the Commission] will need to procure the services of an outside consultant to assist with this response." The Commission states that "[t]he cost of this consultant is $30.00 per hour. In addition to the 4 hours of time already spent internally to gather the information responsive to your request, the outside consultant has informed us that it will take approximately 2 hours to research this request to determine with certainty, if it is possible to replicate and the time it will take to do so. Therefore, the Commission makes a good faith estimate of the cost to research this of $60.00 ...." The Commission advises Mr. Wallack to contact it" ... and work with [its] staff to determine if the scope of the records [he is] seeking can be reduced or modified." The Commission's February 25th supplemental response In its February 25, 2019 supplemental response, the Commission explains that after it received clarification of Mr. Wallack's request, it". .. spent over four (4) hours determining whether or not it was possible to update th[e ] spreadsheet in-house ... These efforts included various attempts to re-create an updated spreadsheet containing all data fields previously queried; conversations as to who at the agency has the knowledge to recreate an updated spreadsheet; discussions with the General Counsel, CFO, and HR Dept. on the feasibility of going to an outside consultant to create a database inquiry to replicate the spreadsheet; and finally numerous discussions with the outside consultant to determine the amount of time it would take to complete the re-creation of the spreadsheet." Based on the inability of the Commission to create the records in-house, the Commission states that it" ... invited Mr. Wallack to contact [it] to determine whether the scope of the records sought could be modified so that [the Commission] could produce a similar spreadsheet without the services of an outside consultant." The Commission asserts that "[t]he mandatory disclosure provision of the Public Records Law only applies to information that is in the custody of the governmental entity at the time the

Theresa Lepore SPR19/0257 Page 3 February 26, 2019 request is received. Consequently, there is no obligation to create a record for a requester or to honor prospective requests. It should be noted, however, that the Regulations do not prohibit an RAO from responding to such requests ...." The Commission explains that "[it] does not have the means to 'extract' the requested data in-house in the manner which Mr. Wallack is requesting," hence, the reason for procuring an outside consultant. The Commission states that it is "not able to give Mr. Wallack a good faith cost estimate without the consultant first taking the time to determine if the data can or cannot be extracted in the manner requested. If it is feasible, a cost estimate of the time to produce the log will be sent. ... " 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, § lO(d); see also 950 C.M.R. 32.07(2). Additionally, the reasonable fee for reproduction shall not exceed the actual cost of reproducing the record. Id. A agency 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, § lO(d); see also 950 C.M.R. 32.06(4). In its February 25th supplemental response, the Commission explains that the first four hours " ... included various attempts to re-create an updated spreadsheet containing all data fields previously queried; conversations as to who at the agency has the knowledge to recreate an updated spreadsheet; discussions with the General Counsel, CFO, and HR Dept. on the feasibility of going to an outside consultant to create a database inquiry to replicate the spreadsheet; and finally numerous discussions with the outside consultant to determine the amount of time it would take to complete the re-creation of the spreadsheet." Although the Commission asserts that it has not charged Mr. Wallack for these four ( 4) hours, it is unclear how the Commission may assess a fee for these activities under G. L. c. 66, § 10(d )(iii). Particularly, it is uncertain how these activities, including the 2 hours of research time, constitute time to search for, compile, segregate, redact, or reproduce records. The Commission must clarify this matter. Please be advised that a records custodian cannot charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 1O (a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). In its response, the Commission indicates that it is assessing a research fee of $60.00 at $30.00 per hour for 2 hours. The Commission 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, § 10(d )(ii).

Theresa Lepore SPR19/0257 Page 4 February 26, 2019 Additionally, in its February 25th response, the Commission asserts that "[t]he mandatory disclosure provision of the Public Records Law only applies to information that is in the custody of the governmental entity at the time the request is received. Consequently, there is no obligation to create a record for a requester or to honor prospective requests .... G. L. c. 4, § 7(26) (defining 'public records' as materials which have already been 'made or received' by a public entity) ...." Please note that under the Public Records Law, "furnishing a segregable portion of a public record shall not be deemed to be creation of a new record. This applies to a responsive record in the form of an extract of existing data, as such data exists at the time of the request and is segregable from nomesponsive and exempt data." 950 C.M.R. 32.07(1)(f). Modification of request In its responses, the Commission" ... invited Mr. Wallack to contact [it] to determine whether the scope of the records sought could be modified so that [the Commission] could produce a similar spreadsheet without the services of an outside consultant." Whereas the Commission has expressed its willingness to cooperate with Mr. Wallack, this office encourages Mr. Wallack and the Commission to communicate to facilitate providing records efficiently and affordably. G. L. c. 66, § IO(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). 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 Commission is ordered to provide Mr. Wallack 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Todd Wallack