Colman Herman v. Office of Consumer Affairs and Business Regulation (SPR 20200298)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 3, 2020 SPR20/0298 Janelle Hardiman Records Access Officer Office of Consumer Affairs and Business Regulation 501 Boylston Street, Suite 5100 Boston, MA 02116 Dear Ms. Hardiman: I have received the petition of Colman Herman appealing the response of the Office of Consumer Affairs and Business Regulation (Office) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on November 25, 2019, Mr. Herman requested "hard copies and electronic copes of records related to boundary violations committed by message therapists for the period November 1, 2018 to October 31, 2019." Previous appeal This request was the subject of a previous determination. See SPR20/0006 Determination of the Supervisor of Records (January 16, 2020). In my January 16th determination, I found the Office must explain why the estimated amount of time is necessary, and clarify how they are permitted to charge for segregation. The Office was ordered to provide a response to Mr. Herman in a manner consistent with the order, the Public Records Law and its Regulations within 10 business days. The Office provided a supplemental response on February 14, 2020. Unsatis;fied with the Office's response, Mr. Herman petitioned this office and SPR20/0298 was opened as a result. 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 paiiicular 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). One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Janelle Hardiman SPR20/0298 Page 2 March 3, 2020 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, § IO(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 pot 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, § IO(d)(iv). See G. L. c. 66, § IO(d)(ii); 950 C.M.R. 32.06(4). The Division's February 141 Supplemental Response " In its February 14th response, the Office provides a fee estimate totaling $862. The Office indicated a rate of $22.00 per hour for 19 hours of search time, with the first four hours waived, $25.00 per hour for 19 hours of segregation time, and $.05 per copy for 1,140 pages. The Office also indicated there were 38 complaints responsive to this request. The Office estimates "it will require approximately one hour per responsive complaint record to search for and segregate." The Office explains the "Agency will need to more closely review the actual records to ensure they are in fact responsive to your request ... the only way to ensure these identified records are truly responsive to your request is to pull the actual complaint records, which are not maintained in electronic form ... DPL staff will need to physically to search for, locate, pull, copy, closely review, and then reshelve all potentially responsive records to ensure they are consistent with the nature of the records you are seeking. Based on the number and size of the complaint records associated with the nature codes searched, DPL estimates it will take at least 19 hours to search for these records." The Office further explains "[n]early every complaint filed with a DPL board includes personal identifying information, such as non-public mailing addresses, social security numbers, email addresses, phone numbers, dates of birth, and other information that is exempt from disclosure pursuant to the privacy exemption in the public records law, G. L. c. 4 § 7(26)(c). In addition these files may include other documents and information such as medical records and criminal background information obtained through Criminal Offender Records Information checks, that are exempt from disclosure under privacy exemption, as well as statutory exemption outlined in G. L. c. 4 § 7(26)(a)." The Office also cites Exemption (f) explaining "[a ] number of potentially responsive records involve allegations of rape, sexual assault or other serious crimes under Massachusetts law. The disclosure of information and documents related to the investigative techniques used in the underlying matter could potentially prejudice other victims of such crimes by licenses therapists from filing a complaint with DPL." Based on the Office's February 14th response, is unclear why the Office requires 38 hours to complete the tasks necessary to provide Mr. Herman with the complaints. The Office's fee

Janelle Hardiman SPR20/0298 Page 3 March 3, 2020 estimate has not explained with specificity why the indicated amount of time is necessary for producing the requested records. Specifically, the Office must provide more detail regarding why 19 hours is necessary to search for the records, as well as 19 hours for segregation under Exemption (a). Further, the Office is again 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 Office has not received approval under a petition to charge for segregation, it is unclear how the Office is permitted to charge for segregation under Exemptions (c) and (f). The Office must clarify this matter. Order Accordingly, the Office is ordered to provide Mr. Herman with a revised fee estimate for the request, 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman