Elise Waisbren v. Division of Occupational Licensure (SPR 20191689)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 3, 2019 SPR19/1689 Araceli Avila Ging Division of Professional Li censure 1000 Washington Street Boston, MA 02118 Dear Ms. Ging: I have received the petition of Elise Waisbren, Esq. of Phillips Law Offices appealing the response of the Division of Professional Licensure (Division) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on July 3, 2019, Attorney Waisbern requested "[r]eports of escalatory-related injuries, including step/skirt entrapments (and particularly 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." Previous appeal This request was the subject of a previous appeal. See SPR 19/1425 Determination of the Supervisor of Records (July 31, 2019). In my July 3 pt detennination, I found that the Division did not provide enough explanation to justify its July 1o th cost estimate. Accordingly, I ordered the Division to provide Attorney Waisbern with a revised written, good faith estimate for the cost of complying with her request consistent with the Public Records Law, its Regulations, and the determination. 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 fonn 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, § IO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. 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

Araceli Avila Ging SPR19/1689 Page 2 September 3, 2019 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § IO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Division's August 81 response and cost estimate " In its August 8, 2019 response, the Division states that it utilized the lowest paid employee capable of perfonning the task of search and segregation. The Division indicates that it estimated that "responsive documents numbered approximately 17,000 pages" but it is likely that the actual number of the responsive records may be much higher. The Division contends that its July 10th cost estimate is justified, " ... since the requester has sought fifty (50) years ... of records including injury reports, of virtually every accident/incident involving escalators in Massachusetts." The Division explains that "[ d]ecades of this type of information is not readily accessible, some of it may have been involved in complaint matters kept with inspectional records, or filed with other records depending on the nature of the specific incident. As such, it is anticipated that [it] will be required to dedicate more than two weeks of full time work on this single overbroad request. .." With respect to segregation and redaction of the records, the Division asserts that it is "mandated by law to segregate records ... and would be exposed to legal jeopardy if it failed to do so." The Division states that its July 10th cost estimate indicated that records would have to be redacted under G. L; c. 66A §§ 1-2, as the responsive records" ... contain names of victims of accidents and includes health/medical information." The Division also indicates that "[ o ]ther state and federal laws also mandate medical information be kept confidential (see e.g. M.G.L. c. 93H, 38 U.S. Code §7331, etc.)." The Division indicates that it estimates that approximately 16,874 pages of information would be responsive to Attorney Waisbren's request and amends its cost estimate as follows: "CD-ROM with electronic copies= $5.00[;] Estimated Postage for CD-ROM delivery $3.50[;] Paper: Each Page: $.05/page: $843.00[;] Estimated Postage for paper delivery: $19.95 (USPS large flat rate) ... [;] Search Time= 19 hours: $375.00 (no charge, first four hours free)[;] Segregation time= 77.00 hours $1,925 (balance of first four hours free)[;] Total with CD-ROM $2,308.50[;] Total with paper copies $3,162.95." Based on the Division's response, I find it has not explained with specificity why the indicated amount of time, 19 hours, is required to search for the responsive records. Specifically, the Division has not provided information regarding the location of these records and the tasks that are associated with searching for the responsive records. The Division must clarify these 1Ssues.

Araceli Avila Ging SPR19/1689 Page 3 September 3, 2019 Further, although the Division has demonstrated that certain information by law needs to be redacted, it is unclear how it requires 77 hours to produce the responsive records. Particularly, despite the Division indicating that it estimates redacting an approximately 16,874 pages of information, it remains unclear how many minutes per page the Division requires to review the responsive records. The Division must clarify this issue. This office encourages Attorney Waisbren and the Division to continue to communicate to facilitate providing the records more efficiently and affordably. See G. L. c. 66, § lO(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). Conclusion Accordingly, the Division is ordered to provide Attorney Waisbren 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: Elise Waisbren, Esq.