Matthew Rocheleau v. Executive Office of Health & Human Services - Holyoke Soldiers' Home (SPR 20201055)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 14, 2020 SPR20/1055 Mark Yankopoulous Records Access Officer Executive Office of Health & Human Services Soldier’s Home in Holyoke 110 Cherry Street Holyoke, MA 01040 Dear Mr. Yankopoulous: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Executive Office of Health & Human Services (EOHHS) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 12, 2020, Mr. Rocheleau requested, “[a]ny and all payment transaction records, bills/receipts, purchase orders, invoices, vouchers, bid/contract documents, and other agreement from spending/purchases the agency has made/authorized related to COVID response efforts, including, but not limited to, spending/purchases for supplies, such as masks and other PPE, and for services, such as the contact tracing effort with Partners in Health.” EOHHS responded on June 25, 2020 by providing a response which included a fee estimate. Unsatisfied with EOHHS’s response, Mr. Rocheleau petitioned this office and this appeal, SPR20/1055, was opened as a result. 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); 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 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

Mark Yankopoulous SPR20/1055 Page 2 July 14, 2020 establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Please be advised, “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). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Also, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). 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 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). EOHHS’s Fee Estimate In its June 25th response, EOHHS provides a fee estimate totaling $250. EOHHS indicates that it “estimates 12 additional hours of personnel time will be required to search for, compile, segregate, redact, and assemble records for production. HLY personnel must search for and scan these records to create an electronic copy for production. HLY personnel must also review these records for responsiveness, applicable privileges and exemptions, and then make necessary redactions, as required by law.” EOHHS states “HLY 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). HLY has already expended two (2) hours working on your PRR, including searching for and identifying potentially responsive records and issuing this response.”

Mark Yankopoulous SPR20/1055 Page 3 July 14, 2020 EOHHS explains “[t]he information prohibited or exempt from disclosure may include bank account information, exempt pursuant to G. L. c. 4, § 7 (26)(n) (exemption for security). Additional prohibitions and exemptions to disclosure may apply and will be determined during the segregation and redaction process.” EOHHS’s fee estimate has not explained with specificity why the indicated amount of time is necessary for producing the requested records. EOHHS has not provided sufficient explanation to explain why 14 hours is necessary to search, segregate, and redact the records in order to comply with the records request. It is also not clear from the EOHHS's estimate how many hours were allocated to search, segregation, and redaction of the records. Finally, EOHHS is 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 through a petition. See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). Whereas EOHHS has not provided an explanation of how segregation and redaction is required by law, and EOHHS has not received approval to charge for segregation, it is unclear how EOHHS is permitted to charge for segregation and redaction under Exemption (n). EOHHS must clarify these matters. Order Accordingly, EOHHS is ordered to provide a response to the requestor 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: Matthew Rocheleau