Joe Difazio v. Department of Public Health (SPR 20201029)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 13, 2020 SPR20/1029 Helen Rush-Lloyd Records Access Officer Department of Public Health 250 Washington Street Boston, MA 02108-4619 Dear Ms. Rush-Lloyd: I have received the petition of Joseph DiFazio, of The Patriot Ledger, appealing the response of the Department of Public Health (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. DiFazio requested: “Any records, including communications electronic or otherwise, text messages, notes, process notes in possession of the [D]epartment regarding public records requests made by The Patriot Ledger, MetroWest Daily News and/or Brockton Enterprise regarding the death toll at long-term care facilities such as nursing homes and skilled nursing homes because of the [C]oronavirus between April 1 and May 26, 2002.” In a June 9, 2020 response, the Department provided Mr. DiFazio with a fee estimate to provide him with the responsive records. As a result of the fee estimate totaling $2900.00, on June 10, 2020, Mr. DiFazio sent an email to the Department seeking to reduce the cost. He asserts, “I think the method of searching may have been too broad and has churned up far too many emails, driving up the cost of this request out of our budget. I’m looking for records and [D]epartment communications that are associated with what I believe to only be a handful of requests from our three [newspapers] regarding the number of Covid deaths at long-term care facilities.” Mr. DiFazio suggests using the search terms of “records” and “request” to reduce the number of records culled. After not receiving a response, Mr. DiFazio petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his petition, he states that he seeks a way to reduce the fees, and if possible, that all future fees be waived by the Department due to the request being in the public interest and used in newsgathering. 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

Helen Rush-Lloyd SPR20/1029 Page 2 July 13, 2020 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). Agencies may not assess a fee for the first 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); see also 950 C.M.R. 32.06(4). ----- The Department’s June 9, 2020 fee estimate In its June 9th fee estimate, the Department explained that it conducted an agency-wide search of all email correspondence using the search terms, “Patriot Ledger” or “MetroWest Daily;” or “MetroWest Daily” or “Brockton Enterprise” and “LTCF” or “Long Term Care” or “Nursing Home” and “Coronavirus” or “COVID” and “Death” from April 1, 2020 through May 26, 2020. The Department indicated that it searched and identified approximately 4,800 emails that may be responsive to Mr. DiFazio’s request; and these emails must be reviewed for responsiveness; applicable privileges; exemptions and other lawful protections, and make redactions as required by law. The Department also indicates that after a review of the records, it is possible that a substantial amount of the records may be exempt under the Public Records Law. The Department explains that it does not have an employee with the necessary skill who is paid less than $25.00 per hour; therefore, the Department assessed the maximum hourly rate of $25.00 as allowed by the Public Records Law. In addition, the Department did not charge the first four (4) hours of personnel time at the hourly rate of $25.00. See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.07(2)(i). The fee estimate of $2900.00 is based on 120 hours of personnel time necessary to segregate, redact and assemble the records. The Department calculates the estimated average of segregation and redaction at a rate of 40 documents per hour (4,800 records ÷ 40 documents reviewed per hour = 120 hours). Your estimate indicates that the 120 hours of personnel time will be devoted to segregating and redacting records where redactions are required by law.

Helen Rush-Lloyd SPR20/1029 Page 3 July 13, 2020 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, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form 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, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). The Department’s exemption claims In its June 9th response, the Department explained that it would have to review and redact records pursuant to the Massachusetts Fair Information Practices Act (FIPA), G. L. c. 66A, as it operates through Exemption (a) due to information of a highly personal nature; medical and personal information which constitutes an unwarranted invasion of personal privacy under Exemption (c); information that may relate to policy positions being developed by the Department under Exemption (d), and information that is protected under the common law attorney-client privilege and/or attorney work product. You informed a Senior Attorney in the Public Records Division that the Department’s Legal Department will reach out to Mr. DiFazio to see if the request can be narrowed or modified to reduce the total cost. To date, it is unclear whether the Department has contacted Mr. DiFazio to do so. See G. L. c. 66, § 10(a)(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). Mr. DiFazio and the Department are encouraged to communicate in order to facilitate producing records efficiently and affordably. See G. L. c. 66, § 10(a)(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 Department is ordered to provide Mr. DiFazio with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations as

Helen Rush-Lloyd SPR20/1029 Page 4 July 13, 2020 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: Joseph DiFazio, The Patriot Ledger