Colman Herman v. Office of Consumer Affairs and Business Regulation (SPR 20201301)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 18, 2020 SPR20/1301 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); SPR20/0899 Determination of the Supervisor of Records (June 19, 2020). In my June 19th determination, I found the Office must revise its estimate for the cost of complying with Mr. Herman’s s request. Specifically, the Office was advised that it cannot charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. 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 July 23, 2020. Unsatisfied with the Office’s response, Mr. Herman petitioned this office and SPR20/1301 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 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 SPR20/1301 Page 2 August 18, 2020 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). Current Appeal In its July 23rd response, the Office states it “is revising its previously estimated search time from one half hour to fifteen minutes for each of the 38 potentially responsive complaints files, for a total of approximately 9.5 hours. This reflects the time needed for DPL staff to physically search for, locate, order for retrieval, pull or sort through storage boxes, remove staples or clips, copy, closely review, 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.” The Office provide the following fee estimate: “Initial Search Time: 4.0 hours x $22.00 = $88.00 (Not Assessed) Additional Search Time: 9.5 hours x $22.00 = $121.00 Segregation Time: 19 hours x $25.00 = $475.00 Copies: 1,140 (est.) pages x $.05 = $57.00 Total: $653.00” In its June 5th response, the Office had stated “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....” Even though the Office indicates they are revising the search time to half the amount of time originally estimated; fifteen minutes totaling 9.5 hours; the fee estimate above reflects 13.5 hours total of search time. Mr. Herman in his appeal states “Ms. Hardiman wants to charge me for ‘sort[ing] through storage boxes.’ As I have written before, I should not have to pay for the chaotic and disorderly way OCABR/DPL 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.’” Mr. Herman further contends “Ms. Hardiman also wants to charge me for

Janelle Hardiman SPR20/1301 Page 3 August 18, 2020 ‘order for retrieval[’] and ‘reshipping.’ She is not allowed to do that. In her letter dated June 5, 2020, Ms. Hardiman stated the records are stored in ‘five different locations.,’ [sic] Thus, she wants to charge me for ‘retrieval’ and ‘reshiping’ [sic] that are a result of the chaotic and disorderly way OCABR stores its records.” The Office is advised that agencies cannot charge a requestor for the time it takes to search for responsive records based on insufficient 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. 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