Matthew Rocheleau v. Executive Office of Elder Affairs (SPR 20201358)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 26, 2020 SPR20/1358 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.” Previous appeal This request was the subject of a previous appeal. See SPR20/1064 Determination of the Supervisor of Records (July 15, 2020). In my July 15th determination, I found EOEA’s fee estimate had not explained with specificity why the indicated amount of time is necessary for producing the requested records. Specifically, EOEA was ordered to clarify what tasks are necessary to provide the records. On August 11, 2020, EOEA provided a response to Mr. Rocheleau. Unsatisfied with EOEA’s response, Mr. Rocheleau petitioned this office, and SPR20/1358, was opened as a result. Fee estimate 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 SPR20/1358 Page 2 August 26, 2020 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). Current Appeal In its August 11th response, EOEA states “[a]s of the July 1, 2020 fee estimate, EOEA had already expended two (2) hours working on your PRR. EOEA has identified custodians, generated a responsive spreadsheet, performed preliminary searches for responsive records, and issued multiple responses. EOEA is not assessing fees for these hours, but does include these hours in calculating the total personnel time spent on the PRR. EOEA then deducts the four statutorily complimentary hours. G.L. c. 66, §10(d); 950 CMR 32.07(2).” EOEA indicates “[i]n its July 1, 2020 letter, EOEA estimated 15 additional hours of personnel time were required to search for, compile, segregate, redact, and assemble records for production…8 additional personnel hours are required search for and compile records. An additional 5 personnel hours will be required to segregate and redact records.” EOEA explains “EOEA personnel will expend approximately 8 hours searching and compiling invoices, purchase orders, contracts, solicitations, and related supporting documentation. This requires EOEA personnel search and compile records from various departments including budget, contracts and procurement. EOEA personnel in these departments will need to scan hard copy records that are not currently available in electronic form.” EOEA further explains it “…estimates 5 additional personnel hours will be required to segregate and redact the records to remove information protected from public disclosure. For example, the records may include bank account information, which is exempt pursuant to G. L. c. 4, § 7 (26)(n)…[u]ntil EOEA reviews the responsive records it is unable to determine whether additional exemptions or prohibitions on disclosure apply. Accordingly, EOEA will not collect an estimated fee at this time for the personnel hours required to segregate and redact the records. If during the review process EOEA identifies legal prohibitions on disclosure of certain information contained in the records, EOEA will issue a supplemental fee estimate.”

Lesley Moreau SPR20/1358 Page 3 August 26, 2020 In his appeal, Mr. Rocheleau contends “[t]he Response…still violates the public records law in that it does not distinguish between the segregation and redaction that the Department is legally required to perform, and for which it may therefore charge a fee pursuant to G.L. c. 66, § 10(d)(ii), and the segregation and redaction that it chooses to perform on the basis of an exemption. Because the Department has not petitioned the Supervisor pursuant to G.L. c. 66, § 10(d)(iv) for the right to charge for segregation and redaction that is not required by law, I respectfully request that the Supervisor order the Department to provide a new fee estimate inclusive of time spent on segregation and redaction only to the extent that such segregation and redaction is legally required.” Mr. Rocheleau further states “[t]he Department continues to improperly include within its fee estimate time it has spent issuing responses/fee estimates to this request, and the Department is also apparently calculating into its fee estimate time spent on an previous, separate public records request which was closed after the Globe narrowed the prior request and received documents. Issuing a fee estimate is not one of the enumerated tasks for which a Department may charge…[t]he Department also claims: ‘EOEA is not assessing fees for these hours, but does include these hours in calculating the total personnel time spent on the PRR.’ That sentence contradicts itself and the math spelled out later in the fee estimate shows the agency is indeed quoting fees for these hours.” Mr. Rocheleau also notes “these documents relate to government spending – a fundamental public record that should not be shielded by charging taxpayers additional fees to them. Particularly these documents relate to government spending during the ongoing pandemic, making them of high public interest, and, of course, these records are not being sought for commercial purposes, but rather as part of a newsgathering operation to inform the public.” EOEA’s supplemental response has not explained with specificity why the indicated amount of time is necessary for producing the requested records. It is unclear how “multiple responses” in EOEA’s fee estimate falls under any of the categories an agency is permitted to charge for. see G.L. c. 66, § 10(d)(ii) (the records access officer may also include as part… 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). EOEA is advised a reasonable fee shall not exceed the actual cost of reproducing the record. see G.L. c. 66, § 10(d). Further, EOEA must clarify the amount of time for segregation, as well as the amount of time for redaction. EOEA is reminded 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, EOEA is not permitted to charge for segregation and redaction under Exemption (n).

Lesley Moreau SPR20/1358 Page 4 August 26, 2020 Order Accordingly, EOEA is ordered to provide a revised fee estimate 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