Colman Herman v. Office of Consumer Affairs and Business Regulation (SPR 20201302)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 17, 2020 SPR20/1302 Janelle M. Hardiman Records Access Officer Office of Consumer Affairs and Business Regulations Division of Professional Licensure 501 Boylston Street, Suite 5100 Boston, MA 02116 Dear Ms. Hardiman: I have received the petition of Colman Herman appealing the response of the Division of Professional Licensure (Division) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Mr. Herman requested, “hard copies and electronic copies of the complete files for disciplinary actions against massage therapists for sexual misconduct (your nature code SX) … for the period January 1, 2015 to the present.” Previous Appeal This request was the subject of a previous appeal. See SPR20/0948 Determination of the Supervisor of Records (June 26, 2020). In my June 26th determination, the Division was to provide a subsequent response. On July 23, 2020, the Division provided a supplemental response explaining a fee estimate of $1,706.00, reduced from the original fee estimate of $2,212.00. Unsatisfied with the July 23rd response, Mr. Herman appealed, and SP20/1302 was opened as a result. Fee estimate - agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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 M. Hardiman SPR20/1302 Page 2 August 17, 2020 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)(iii); 950 C.M.R. 32.06(4). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). It is my understanding that the Division did not file a petition with the Supervisor of Records. The Division's July 23rd Fee Estimate In its July 23rd response, the Division states that “[the] Division is revising its previously estimated search time from one half hour to fifteen minutes for each of the 92 potentially responsive complaints files, for a total of approximately 19 hours. This reflects the time needed for [the] Division 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 [requested]. … the total revised cost estimate is as follows: Initial Search time 4.0 hours x $22.00/hour = $88.00 (not assessed) Additional Search time: 19 hours x $22.00 = $418.00 Segregation Time: 46 hours x $25.00 = $1,150.00 Copies: 2,760 (est.) pages x $0.05 = $138.00 Total $1,1706.00.” Current Appeal In his appeal dated August 4th, Mr. Herman objects in part to the $1,150 charge for segregation, for sorting through storage boxes, for retrieval and reshipping, and for removing staples and paper clips. The Public Records Law provides that in cases where necessary to reproduce the requested records a records access officer may charge a fee to search for, compile, segregate, redact or reproduce a requested record based on the hourly rate of the lowest paid employee who is capable of performing the task. G. L. c. 66, § l0(d); see also 950 C.M.R. 32.07(2). The ----- reasonable fee for reproduction shall not exceed the actual cost of reproducing the record. Id. The Division's fee estimate has not explained with specificity why the indicated amount of time is necessary for producing the requested records. The Division's fee estimate lacks confirmation that the rates for search and segregation is of the lowest paid employee who is capable of performing the task(s). Further, the Division has not provided sufficient explanation

Janelle M. Hardiman SPR20/1302 Page 3 August 17, 2020 to explain why 19 hours of search time and 46 hours for segregation is necessary to comply with the records request and how fifteen minutes per record is in conformity with G. L. c. 66, §10(d). Specifically, the Division must clarify what tasks are necessary to provide the records. Additionally, I find the Division must provide information about whether the responsive records contain information that that is required by law to be segregated or redacted, as well as the applicable statutes, if any. Conclusion Accordingly, the Division is ordered to provide Mr. Herman with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations as soon as is 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