Matthew Rocheleau v. Executive Office of Health & Human Services - Holyoke Soldiers' Home (SPR 20201371)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 27, 2020 SPR20/1371 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.” Previous Appeal This request was the subject of a previous appeal. See SPR20/1055 Determination of the Supervisor of Records (July 14, 2020). In my July 14th determination, I requested that EOHHS explain the number of hours to search, segregate and redact. EOHHs provided a reduced fee estimate. Unsatisfied with the response, Mr. Rocheleau petitioned this office and SPR20/1371 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 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 SPR20/1371 Page 2 August 27, 2020 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 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. 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). 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 August 11th Revised Fee Estimate In its August 11th response, EOHHS provides a revised fee estimate totaling $150.00. EOHHS indicates that it “estimates 10 additional hours of personnel time will be required to search for compile, segregate, redact, and assemble records for production.” EOHHS explained that, “… 8 additional personnel hours are required search for and compile, and scan records. An additional 2 personnel hours will be required to segregate and redact records.” EOHHS indicated the tasks involved in the 8 hours are “…searching and compiling invoices, purchase orders, contracts, solicitations, and related supporting documentation … from various departments including budget, contracts and procurement.” EOHHS submitted a revised fee estimate as follows: $25 per hour x 10 hours total hours – 4 statutory hours = 6 hours x $25 = $150.00 EOHHS states “[The Soldiers’ Home in Holyoke] 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

Mark Yankopoulous SPR20/1371 Page 3 August 27, 2020 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).” EOHHS explains “[t]he 2 … hours [that] will be required to segregate and redact the records … [that] may include bank account information, which is exempt pursuant to G. L. c. 4, § 7 (26)(n) (exemption for security. Until EOHHS reviews the responsive records, it is unable to determine whether additional exemptions … apply.” EOHHS further states that “… [it] will not collect an estimated fee at this time for the personnel hours required to segregate and redact the records.” However, the calculation of 10 hours appears to include the 2 additional hours for segregation and redaction. EOHHS must clarify this matter. Finally, EOHHS has not provided sufficient explanation to explain why 8 hours of search time is required. EOHHS must break down and explain how much time is needed to search, how much time is needed to compile the records and how much time is required to scan the records. Additionally, EOHHS must explain how many records are involved in the responsive records request. For these reasons, I find EOHHS must revise its fee estimate in accordance with G.L. c. 66, § 10(d). Order Accordingly, EOHHS is ordered to provide a response to Mr. Rocheleau 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