Colman Herman v. Department of Veteran Services (SPR 20200889)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 17, 2020 SPR20/0889 Stuart Ivimey, Esq. General Counsel Department of Veterans’ Services 600 Washington Street, 7th Floor Boston, MA 02111 Dear Attorney Ivimey: I have received the petition of Colman Herman appealing the response of the Department of Veterans’ Services (Department/DVS) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on May 13, 2020, Mr. Herman requested the following records: 1) Records of all the expenses Francisco Urena incurred in his capacity as secretary of the Department of Veterans’ Services for the period March 1, 2019 to February 29, 2020. This includes, but is not limited to, the following. a) Expense reports, including back-up receipts b) Credit cards statements, including back-up receipts c) Automobile expense records, including back-up receipts d) Any and all other records that document Secretary Urema’s [sic] expenses, including back-up receipts . . . 2) The written employee reimbursement policy of the Department of Veterans’ Services. The Department responded on May 29, 2020, providing a fee estimate. Objecting to the fees, Mr. Herman petitioned this office and this appeal, SPR20/0889, was opened as a result. Fee estimate – 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, § 10(d)(i). 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

Stuart Ivimey, Esq. SPR20/0889 Page 2 June 17, 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, § 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, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). The Department’s May 29th response and fee estimate In its May 29, 2020 response, the Department provided links to access records responsive to request 2. With respect to request 1, the Department identified various exemptions under the Public Records Law, as well as the attorney-client privilege, and assessed a fee for segregation and redaction of the records. The Department states that it “. . . has identified approximately 500 paper documents potentially responsive to the PRR. DVS personnel must review these for responsiveness, applicable privileges and exemptions, and then make necessary redactions, as required by law. . . DVS estimates 12.5 additional hours of personnel time will be required to segregate, redact, and assemble records for production. The number of hours has been calculated by estimating an average segregation and redaction rate of 40 documents per hour (500÷40=12.5). The 12.5 additional hours will be attributed to segregating and redacting records as required by law.” The Department posits that pursuant to G. L. c. 66, § 10(d)(ii), “[it] does not have an employee with such necessary skill who is paid less than $25.00 per hour. Pursuant to the Public Records Law, the first four (4) hours of personnel work are free of charge; thereafter an hourly rate of $25.00 will be charged. G.L. c. 66, § 10(d); 950 CMR 32.07(2).” The Department explains that it “. . . has already expended two (2) hours working on your PRR, including identifying potentially responsive records and issuing this response.” The Department explains that “. . . records must be segregated and redacted to determine responsiveness and remove certain information prohibited or exempt from disclosure including, but not limited to: [p]ersonal contact information of state employees including, but not limited to, the home phone numbers, physical addresses, and email addresses. G.L. c. 4, § 7 (26), Exemptions (c),(o), (p); [s]ocial Security numbers; driver’s license numbers, financial account numbers, or credit or debit card numbers. G.L c. 93H, G.L. c. 4, § 7 (26), Exemptions (a)(c),(o), (p), Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988)[;] . . . [m]edical information and personal data relating to private citizens of the Commonwealth is protected from disclosure.” The Department asserts that “[t]his information constitutes protected health information protected from disclosure pursuant to the Health Insurance Portability and Accountability Act (‘HIPAA’) Privacy Rule, 42 U.S.C. 1320d, et seq., and its implementing regulations, 45 CFR Parts 160 and 164. DVS is further prohibited from disclosing this

Stuart Ivimey, Esq. SPR20/0889 Page 3 June 17, 2020 information because it constitutes personal data protected from disclosure pursuant to G.L. c. 66A, the Massachusetts Fair Information Practices Act (‘FIPA’). If DVS disclosed such information, DVS may be liable for damages under G.L. c. 214, § 3B. See also 801 CMR 3.00 (regulating dissemination of personal data under FIPA). Additionally, this information is exempt from disclosure pursuant to G.L. c. 4, §7(26)(c) as it is medical information. An individual’s medical information is absolutely exempt under the first clause of exemption (c). Globe Newspaper Co. v. Bos. Ret. Bd., 388 Mass. 427, 442 (1983).” The Department states that “[t]his information is further exempt under the second clause of G.L. c. 4, §7(26)(c) as it is private information, the disclosure of which may constitute an unwarranted invasion of privacy. This information is of a highly personal nature and contains specific details, which may identify individuals. The individuals’ privacy interests outweigh the public’s interest in disclosure. By virtue of the foregoing prohibitions to disclosure of medical information and personal data, this information is also exempt pursuant to G.L. c. 4, §7(26)(a) because it is exempt by statute or necessary implication thereof.” Additionally, the Department asserts that “[c]ommunications by and among agency attorneys and/or agency employees concerning legal advice constitute attorney-client communications and are protected from public disclosure by the attorney-client privilege. See gen. Suffolk Construction Co., Inc. v. Div. of Capital Asset Management, 449 Mass. 444, 448 (2007). Accordingly, at a rate of $25 per hour, the total estimated fee for segregating, redacting, and electronically producing the paper records is $262.50 (12.5 hours - 2 hours) x $25 = $262.50).” The Department asked Mr. Herman to contact it if he wishes “. . . to modify [his] request or explore options for reducing these costs. . . . A potential option includes narrowing the time period covered by the PRR.” Subsequent to the opening of this appeal, I learned that on June 17, 2020, the Department provided Mr. Herman with a supplemental response pertaining to this request. Conclusion Accordingly, I will now consider this administrative appeal closed. Mr. Herman may appeal the substantive nature of the Department’s response within ninety calendar days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman