Elise Waisbren v. Division of Occupational Licensure (SPR 20191425)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July31,2019 SPR19/1425 Jean McCarthy Records Access Officer Division of Professional Li censure 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Ms. McCarthy: I have received the petition of Elise Waisbern appealing the response of the Division of Professional Licensure (Division) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Waisbern requested "[r]eports of escalatory-related injuries, including step/skirt entrapments (and pmiicularly for Otis escalators);" and "[s]tudies, reviews, investigations into escalator operations, maintenance programs, and design/material specifications regarding step/skirt entrapments and prevention of the same" for the time period of "January 1, 1970 to the present." The Division responded to her request by providing a fee estimate. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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

Jean McCaiihy SPR19/1425 Page 2 July31,2019 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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, § lO(d)(iv). See G. L. c. 66, § lO(d)(ii); 950 C.M.R. 32.06(4). In its response, the Division provides two fee estimates, the first totaling $2,330 for responsive records provided electronically on a CD-ROM and the second totaling $3,143 for paper copies of the responsive records. The Division indicates it is charging for 19 hours of search time and 77 hours of segregation time at a rate of $25 an hour for a total of $2,300, which does not include the first four hours of work completed. The Division indicates the cost of the CD-ROM is $30 and the cost of the paper copies for five cents a page for approximately 16,784 pages is $843. The Division's fee estimate, while detailed, lacks confirmation that the Division intends to the use the lowest paid employee who is capable of performing the task of search and segregation. Further, the Division provided no explanation to justify that 96 hours of time spent searching for and segregating records are necessary in order to comply with the records request. Additionally, it is unclear why the Division is charging $30 for the CD-ROM and how such charge is provided for under the Public Records Law. Finally, the Division is advised that an agency is not permitted to charge for time spent segregating records unless segregation is required by law or approved by the Supervisor of Records under a petition. See G. L. c. 66, § lO(d)(ii); 950 C.M.R. 32.06(4). Whereas the Division has not provided an explanation of how segregation is required by law and the Division has not received approval under a petition for charge for segregation, it is unclear how the Division is permitted to charge for segregation.

Jean McCarthy SPR19/1425 Page 3 July 31, 2019 Order Accordingly, the Division is ordered to provide Ms. Waisbern with a revised written, good faith estimate for the cost of complying with his request consistent with the Public Records Law, its Regulations and this determination. Upon payment of the fee, the Division is ordered to provide the records in a timely manner. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Elise Waisbren