Colman Herman v. Massachusetts Division of Occupational Licensure (SPR 20210204)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 8, 2021 SPR21/0204 Bruce E. Hopper, Esq. Massachusetts Division of Professional Licensure 100 Washington Street, Suite 710 Boston, MA 02118-6100 Dear Attorney Hopper: I have received your petition on behalf of the Division of Professional Licensure (Division) requesting permission to charge for time spent segregating or redacting responsive records under G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Division furnished a copy of this petition to the requestor. Id. In a letter dated January 18, 2021, Colman Herman requested “. . . the entire files for disciplinary actions taken against massage therapists.” Mr. Herman notes, “[t]his is for the period January 1, 2016 to the present ... Please exclude files relating to massage therapists involved in sex trafficking, offering to perform a sexual act for a fee, and/or sexual harassment.” Petitions to Assess Fees 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 (Supervisor) 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). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. 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

Bruce E. Hopper, Esq. SPR21/0204 Page 2 February 8, 2021 The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. 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. 950 C.M.R. 32.06(4)(g). Fee Estimates 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 Petition In its petition, dated February 1, 2021, the Division requests permission “. . . to assess reasonable fees for time spent segregating or redacting records.” In an effort to locate responsive records, the Division notes it reviewed “. . . each of the 101 files to determine whether or not the file met the requestor’s particular specifications and found 42 files that are potentially responsive to the request.” The Division contends that segregation and redaction of the records pursuant to the following exemptions are necessary to prudently complete the request. The Division explains the “. . . files contain original complaints and supporting documentation, investigative summaries, correspondence, pleadings and filings from the adjudicatory process, police reports, and medical and psychological records. Therefore, each file must be reviewed to ensure that personal identifying information, such as non-public mailing addresses, social security numbers, email addresses, phone numbers, dates of birth, and other information that is exempt from disclosure pursuant to the privacy exemption in the public records law, G. L. c. 4, § 7(26)(c) and Fair

Bruce E. Hopper, Esq. SPR21/0204 Page 3 February 8, 2021 Information Practices Act pursuant to G.L. c. 66A is not compromised.” The Division adds, “. . . each file must also be reviewed for medical documents or information that are exempt from disclosure pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), criminal background information obtained through Criminal Offender Record Information checks (G.L. c. 6 Section 167, 172), as well as information of sexual assault victims (see, e.g., G.L. c. 258B).” The Division cites Exemption (f) stating, “[a] number of the potentially responsive records involve allegations of rape, sexual assault or other serious crimes under Massachusetts law. The disclosure of information and documents related to the investigative techniques used in the underlying matter could potentially prejudice other victims of such crimes by licensed massage therapists from filing a complaint with DPL, as well as violate victim witness protection statutes.” The Division further notes, “. . . some of the records that are responsive to the request are communications between Board of Registration of Massage Therapy (Board) and DPL prosecutors, or among DPL prosecutors. These communications are subject to attorney-client privilege and are exempt from disclosure under the Public Records Law to the extent they consist of communications about legal matters between counsel and client, or between attorneys representing clients with a common interest. In general these communications address the deliberations of the Board, including alleged misconduct and proposed discipline, pursuant to G.L. c. 112, 269 CMR 5.00, 269 CMR 3.04, and other applicable laws or regulations. These communications were made in confidence for the purpose of obtaining or providing confidential legal advice, did not include any person who was not a Board member, an employee, or attorney within DPL, and were not otherwise disclosed to a third party. Accordingly, the privilege has not been waived.” Conclusion It is my determination that given the nature of the requested records and the explanation in its petition, the Division is permitted to charge for time spent segregating and redacting the requested records. To the extent the responsive records contain the exempt information as described above, the Division may assess a fee for segregation and redaction. Further, this office encourages Mr. Herman and the Division to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Please note, Mr. Herman has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10A.

Bruce E. Hopper, Esq. SPR21/0204 Page 4 February 8, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman