Matthew Rocheleau v. Berkshire Regional Planning Commission (SPR 20200617)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 3, 2020 SPR20/0617 Alexandra B. Rubin, Esq. Miyares and Harrington LLP 40 Grove Street, Suite 190 Wellesley, MA 02482 Dear Attorney Rubin: I have received your petition on behalf of the Berkshire Regional Planning Commission (BRPC) for permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, BRPC furnished a copy of this petition to the requestor. Id. On March 20, 2020, Matthew Rocheleau of the Boston Globe requested the following records: • Any/all emails, text messages, and/or voicemails sent and/or received between Berkshire Public Health Alliance members since March 1, 2020; • Any/all emails, text messages, and/or voicemails sent and/or received by Laura Kittross (Public Health Program Manager) since March 1, 2020; • Any/all emails, text messages, and/or voicemails sent and/or received by Thomas Matuszko (AICP Executive Director) since March 1, 2020. I understand that subsequent to the filing of this petition, Mr. Rocheleau attempted to narrow the request by seeking only messages that contain certain keywords and/or terms. On March 30th you confirmed to our office that BRPC continues to seek a petition “. . . for purposes of redactions and charging the extra fees over the $25/hour.” You also noted that “[t]o be clear, no matter how the Commission ultimately is able to narrow the scope of the request (and it is hopeful that it will be able to narrow the scope), the redaction analysis pursuant to Exemptions A and C will still need to occur, and it will still take time to review the communications for the protected information and apply the redactions.” Petitions regarding fees 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 (Supervisor) under a petition under G. L. c. 66, § 10 (d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). 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

Alexandra B. Rubin, Esq. SPR20/0671 Page 2 April 3, 2020 In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality 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, § 10(d)(i). Municipalities may not assess a fee for the first 2 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities 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. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). BRPC’s petition to assess fees In its petition BRPC initially estimated that there were 8,500 records potentially responsive to the request and that “[i]t is likely that the BRPC may withhold many of these emails, in full or in part, because they are subject to one or more of the exemptions to the Public Records Law.” BRPC cites the Healthcare Insurance Portability and Accountability Act (HIPAA) as it operates through Exemption (a) of the Public Records Law. You indicate “[t]he BRPC acts as the Host Agent for the Berkshire Public Health Alliance (BPHA), an intermunicipal agency that performs all of the duties of local Boards of Health for twenty-three

Alexandra B. Rubin, Esq. SPR20/0671 Page 3 April 3, 2020 (23) municipalities in Massachusetts. Local Boards of Health are often considered HIPAA- covered entities such that the information that they store and communicate about individuals are protected by the HIPAA Privacy Rule (45 CFR Part 160 and Subparts A and E of Part 164). The BRPC, acting as Host Agent, to the extent that it has received such communications, is required to keep this information confidential as well.” BRPC further asserts “. . . even if an email does not fall under the protections of HIPAA, it could contain information protected from release under one of the other exemptions to the public records law.” In particular, you reference Exemption (c) and explain “[a]s employees of the BRPC working closely with the BPHA during this COVID-19 public health emergency, Ms. Kittross or Mr. Matuszko may have communicated via email about issues affecting the residents of Berkshire County represented by the BRPC; these communications may contain medical information related to an identifiable individual that if released, would constitute an unwarranted invasion of privacy.” With respect to the hourly rate BRPC seeks to assess, you explain “Ms. Kittross is the lowest paid employee capable of performing this review; the costs associated with Ms. Kittross are $49.84 per hour. She has the authority to review these emails, which may include personnel information. She also has the full understanding of privacy considerations as it applies to records.” You further note “[h]owever, rather than requesting to assess fees at the actual rate for Ms. Kittross’ time, the BRPC only seeks permission to charge $26.87 per hour, which is the hourly rate of Emily Kirby, Ms. Kittross’ Public Health Planner.” You indicate “I request authorization to charge, at a rate of $26.87 per hour, for actual time spent by Laura Kittross, to segregate and redact emails.” BRPC also provides information regarding the amount of time needed to produce responsive records by explaining “Ms. Kittross is extremely familiar redacting records of this type. She estimates that it will take approximately 30 seconds, on average, to review and as necessary, redact each responsive record.” I find that in light of the factors in G. L. c. 66, § 10(d)(iv), BRPC may assess a fee for the time spent segregating and/or redacting responsive records at a rate of $26.87 per hour. BRPC has also demonstrated that the fees are not being levied to limit, deter, or prevent access to records, nor are the fees a result of charging the requestor a premium due to poor records management practices by BRPC. Conclusion For the reasons described above, BRPC is allowed to assess a fee for the time spent segregating and redacting responsive records and may charge in excess of $25 per hour for the provision of the requested records as allowed for in G. L. c. 66, § 10(d)(iv). However, this allowance is limited to the rate of $26.87 per hour.

Alexandra B. Rubin, Esq. SPR20/0671 Page 4 April 3, 2020 The parties are encouraged to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality 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). Any fee estimate from BRPC must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Mr. Rocheleau has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d)(iv)(4), 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau