Colman Herman v. Office of Consumer Affairs and Business Regulation (SPR 20200899)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 19, 2020 SPR20/0899 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, § 10A; 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 appeals This request was the subject of previous determinations. See SPR20/0006 Determination of the Supervisor of Records (January 16, 2020); SPR20/0298 Determination of the Supervisor of Records (March 3, 2020); SPR20/0298 Determination of the Supervisor of Records Reconsideration (April 17, 2020). In my April 17th determination, I found 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). The Office was ordered to provide Mr. Herman with a revised fee estimate for the request, in a manner consistent with the order, the Public Records Law and its Regulations as soon as practicable. The Office provided a response to Mr. Herman on June 5, 2020. Unsatisfied with the Office’s response, Mr. Herman petitioned this office and SPR20/0899 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, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per 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

Janelle Hardiman SPR20/0899 Page 2 June 19, 2020 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). 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). Current Appeal In its June 5th response, the Office “estimates that it will require approximately one half hour to search for each file and one half hour to segregate each file, for a total of one hour per file. Therefore, the 38 complaint records responsive to your request will take approximately 19 hours to search for and locate, and at least an additional 19 hours to segregate, possibly longer depending upon the complexity of each complaint and disposition(s), for a total of 38 hours.” The Office explains “all complete files are stored by hard copy, DPL staff will need to physically search for, locate, order for retrieval, pull or sort through each storage box, remove staples or clips, copy, closely review for responsive records, and then reshelf or re-box and re- ship all potentially responsive records, in order to ensure that these records are consistent with the nature of the records you are seeking. Complaint records are currently stored by DPL in five different locations that include three separate floors at DPL’s office, the file storage in the basement of DPL, an off-site private archival facility contracted with the Commonwealth, or at the state archives facility. Depending on the location of the case and method of storage, some complaint records may require additional search time. Based on the number, size (discussed below), and location of each of the complaint records DPL believes to be responsive to your request, the Agency estimates that it will take at least half an hour to search for each of the 38 records, for a total of 19 hours. Four hours of this time would be waived, consistent with the requirements of the public records law.” The Office indicates “each complaint record includes, on average, at least 30 pages of documents. These documents may include the original complaint and supporting documentation, investigative summaries, correspondence, pleadings and filings from the adjudicatory process, police reports, and medical and psychological records. Based on this estimate, DPL believes that the 38 potentially responsive complaint records contain approximately 1,140 pages that will need to be reviewed for the response to this request. Based on the number and size of the complaint records that DPL believes to be responsive to your request, the Agency estimates that it will take at least half an hour to segregate each of the 38 records, a total of 19 hours.”

Janelle Hardiman SPR20/0899 Page 3 June 19, 2020 The Office 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) and Fair Information Practices Act pursuant to G.L. c. 66A…[i]n addition, since you are specifically requesting files regarding ‘boundary issues’, each file must be reviewed to determine if it contains other documents or information that are exempt from disclosure under the privacy exemption of the public records law, as well as the statutory exemptions outlined in G. L. c. 4, § 7(26)(a), such as medical records (Health Insurance Portability and Accountability Act of 1996 (HIPAA)), criminal background information obtained through Criminal Offender Record Information checks (G.L. c. 6 Section 167, 172), as well as information of sexual assault victims (see, e.g., G.L. c. 258B0.” The Office further explains “DPL must review each file to determine if certain records and information in the complaint records are exempt from disclosure under the investigative technique exemption outlined in G. L. c. 4, § 7(26)(f). A number of the 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 licensed massage therapists from filing a complaint with DPL, as well as violate victim witness protection statutes.” In his appeal, Mr. Herman contends “I should not have to pay for the chaotic and disorderly way DPL/OCABR stores its records, particularly given M.G.L. c. 66, §12. which states in relevant part: ‘All such records shall be . . . arranged that they may be conveniently examined and referred to.’” In light of the Office’s June 5th response, I find that to the extent the responsive records contain the exempt information as described above, the Office may assess a fee for segregation of information that is required by law. However, in the Office’s response it states “[c]omplaint records are currently stored by DPL in five different locations…” As a result, the Office indicates that it requires 19 hours to search for the responsive records. Please be advised that the Office cannot charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § l0(a); see G. L. c. 66, § l2; see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). Consequently, I find the Office must revise its estimate for the cost of complying with Mr. Herman’s s request.

Janelle Hardiman SPR20/0899 Page 4 June 19, 2020 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 as soon as practicable. 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