Matthew Rocheleau v. Executive Office of Elder Affairs (SPR 20201064)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 15, 2020 SPR20/1064 Lesley Moreau Records Access Officer Executive Office of Elder Affairs One Ashburton Place, 5th Floor Boston, MA 02108 Dear Ms. Moreau: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Executive Office of Elder Affairs (EOEA) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 17, 2020, Mr. Rocheleau requested, “[a]ny/all payment transaction records, bills/receipts, purchase orders, invoices, vouchers, bid/contract documents, and other agreements from spending/purchases the agency and/or any EOEA subagencies/subdepartments 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.” EOEA responded on July 1, 2020 by providing a response which included a fee estimate. Unsatisfied with EOEA’s response, Mr. Rocheleau petitioned this office and this appeal, SPR20/1064, 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

Lesley Moreau SPR20/1064 Page 2 July 15, 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. 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). EOEA’s Fee Estimate In its July 1st response, EOEA provides a fee estimate totaling $275. EOEA indicates that it “has identified 386 records as potentially responsive. EOEA personnel must review these records for responsiveness, applicable privileges, exemptions, and other lawful protections from disclosure, and then make necessary redactions, as required by law… EOEA anticipates responsive records will contain banking or account information. EOEA is prohibited from disclosing this information pursuant to G.L. c. 4, § 7(26)(n).” EOEA states “EOEA does not have an employee with such necessary skill who is paid less than $25.00 per hour. Consistent with 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. M.G.L. c. 66, § 10(d); 950 CMR 32.07(2). EOEA estimates 15 hours of personnel time will be required to segregate, redact, review, and assemble the records for electronic production. The number of hours has been calculated by estimating a total of 5.35 hours to collect and segregate the records. With respect to the approximately 386 records to be reviewed, EOEA estimates 9.65 remaining hours of personal time will be required to review, redact, and assemble the records for electronic production. The number of hours has been calculated by estimating an average review and redaction rate of 40 documents per hour (386 records ÷ 40 = 9.65).” EOEA’s fee estimate has not explained with specificity why the indicated amount of time is necessary for producing the requested records. EOEA has not provided sufficient explanation to explain why 15 hours is necessary to search, segregate, and redact the records in

Lesley Moreau SPR20/1064 Page 3 July 15, 2020 order to comply with the records request. Specifically, EOEA must clarify what tasks are necessary to provide the records. Finally, EOEA 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 EOEA has not provided an explanation of how segregation and redaction is required by law, and EOEA has not received approval to charge for segregation, it is unclear how EOEA is permitted to charge for segregation and redaction under Exemption (n). EOEA must clarify these matters. Order Accordingly, EOEA 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