Emmett S. Muldoon v. Department of Correction - Legal Division (SPR 20210486)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 11, 2021 SPR21/0486 Kate Silvia Director of Communications Department of Correction 50 Maple Street Milford, MA 01757 Dear Attorney Bergeron: I have received the petition of Emmett Muldoon appealing the responses of the Department of Correction (Department) to requests for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). In a request dated January 23, 2021, Mr. Muldoon requested “contracts between the DOC and Wellpath, the provider of medical services to inmates under the care and custody of the DOC.” The Department provided a response on February 3, 2021, which included a fee estimate. Unsatisfied with the Department’s response, Mr. Muldoon petitioned this office and SPR21/0486 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

Kate Silvia SPR21/0486 Page 2 March 11, 2021 Current Appeal In its February 3rd response, the Department indicates “…we have estimated that a charge of $39.90 is necessary to process this production. This amount includes $39.90 for 718 pages of black and white copies at $.05 per page.” In his appeal, Mr. Muldoon states “this appeal centeres soley [sic] on the RAO's request for a fee of $39.90.” Mr. Muldoon contends “the request for larger print would be defined under the ADAAA and its implementing regulations by the Department of Justice, as an auxiliary aid, and as an auxiliary aid, pursuant to 28 CFR 130(f), required to be provided by the DOC, a public entity as defined by the 4DAAA, without a fee.” Waiver of Fees 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. Therefore, it is not within the Supervisor’s enumerated powers to either require or approve such a waiver. Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Emmett Muldoon