Wayne Willis v. Department of Developmental Services (SPR 20210172)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 9, 2021 SPR21/0172 James Bergeron, Esq. Assistant General Counsel Department of Developmental Services 500 Harrison Avenue Boston, MA 02118 Dear Attorney Bergeron: I have received the petition of Wayne Willis appealing the responses of the Department of Developmental Services (Department) to requests for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 26, 2020 and January 1, 2021, Mr. Willis requested certain communications from the Department. The Department responded and provided two fee estimates. Unsatisfied with the estimates, Mr. Willis appealed and SPR21/0172 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 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). 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

James Bergeron SPR21/0172 Page 2 February 9, 2021 The Department’s January 12th and January 15th fee estimates In its January 12, 2021 response to Mr. Willis’ December 26, 2020 request, the Department stated that it has “… approximately 674 emails and attachments that may be responsive to your PRR.” The Department explained, “[e]mails are unlike other types of documents in that there is no pattern to the text included in the emails and each email requires a close line-by-line review to ensure no information requiring redaction by law is overlooked.” The Department noted, “DDS does not have an employee with such necessary skill who is paid less than $25 per hour. Consistent with the PRL, the first four (4) hours of personnel work are free of charge; thereafter, an hourly rate of $25 will be charged.” The Department cited Exemptions (a), (c), (d), (f) and attorney-client privilege. The Department provided its final estimate as follows: “DDS estimates that approximately 17 hours of personnel time will be required for reviewing and redacting the estimated 674 documents (674 ÷ 40 documents per hour = 16.85 hours). Accordingly, at a rate of $25 per hour, the estimated fee for reviewing and redacting these records is $421.25 (16.85hrs x $25/hr = $421.25).” In its January 15, 2021 response to Mr. Willis’ January 1, 2021 request, the Department located “…approximately 283 emails and attachments that may be responsive to your PRR.” The Department provided its final estimate of the fee: “approximately 7 hours of personnel time will be required for reviewing and redacting the estimated 283 documents (283 ÷ 40 documents per hour = 7.07 hours). Accordingly, at a rate of $25 per hour, the estimated fee for reviewing and redacting these records is $176.75 (7.07hrs x $25/hr = $176.75).” Waiver of fees In his petition, Mr. Willis contends he is entitled to a waiver of fees because he believes that the data subject lacks the financial ability to pay the full amount of the reasonable fee. Mr. Willis is advised that while a record custodian may waive applicable fees, under the criteria in 950 C.M.R. 32.07(2)(k)(l-3), the Supervisor has no authority to order that a record custodian do so. In addition, a ruling of indigency by a court of law is inapplicable to requests for records made pursuant to the Public Records Law. See G. L. c. 261, § 27A (defining indigency for civil, criminal or juvenile proceedings or appeals in any court). The Public Records Law does not provide for an exception when the party requesting the records is indigent. See G. L. c. 66, § 10(a) (every person for whom a search of public records is made shall pay the actual expenses of such search); see also Fierro v. Hiscock, et al., Middlesex ---------------------------- Superior Court, C.A. No. 96-7243 (1997) (indigent prisoner not entitled to receive records sought pursuant to the Public Records Law free of charge). Therefore, it is not within the Supervisor’s enumerated powers to either require or approve such a waiver.

James Bergeron SPR21/0172 Page 3 February 9, 2021 Fee estimate 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. 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); 950 C.M.R. 32.06(4)(g). It does not appear that the Department submitted a petition to assess fees for the time to segregate and/or redact responsive records. Please note that 950 C.M.R. 32.06(4)(g) provides that “petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records.” It is unclear whether the Department is charging for segregating or redacting that is not required by law. See G. L. c. 66, § l0(d)(iii) (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)). The Department must clarify this. Conclusion Accordingly, the Department is ordered to provide Mr. Willis with a response to the request, in manner consistent with this order, the Public Records Law and its Regulations within 10 business days. 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: Wayne Willis