Wayne Willis v. Department of Developmental Services (SPR 20210493)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 11, 2021 SPR21/0493 Erin G. Brown, Esq. Assistant General Counsel Department of Developmental Services 100 Washington Street Boston, MA 02118 Dear Attorney Brown: I have received the petition of Wayne Willis appealing the response of the Department of Developmental Services (Department/DDS) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 8, 2021, Mr. Willis requested two categories of records, including “a list of the names of, any and all Licensed Practical Nurses LPN, and/or Registered Nurses RN, that have worked for DDS in the DDS Metro-North area office at any time from January 1, 2017 until February 7, 2021” and “…any and all information…relative to any and all health, illness, and medical, and communication, matters” regarding an identified DDS client for the same time period. The Department provided a response on February 23, 2021, which included a fee estimate. Unsatisfied with this response, Mr. Willis petitioned this office and this appeal, SPR21/0493, 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 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 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

Erin G. Brown, Esq. SPR21/0493 Page 2 March 11, 2021 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The Department’s February 23rd response In its February 23rd response, the Department indicates “DDS is the employer, the DDS is not holder of the records pertaining to…” Mr. Willis’s first category of records. The Department further indicates “[t]he holder of the records you are seeking is the Massachusetts Executive Office of Health and Human Services…” With respect to the second category of the request, the Department states “…client files maintained by DDS are not public records and are exempt from disclosure as the same. See SPR -- 20/1602. As guardian, you have the right to access information regarding your daughter’s client record with DDS.” The Department further states “[u]pon receipt of your February 8, 2021 email, DDS requested information technology (‘IT’) staff conduct a search and collection of all DDS email accounts to identify documents potentially responsive to your request…[t]he search and collection identified approximately two and one half (2.5) Gigabytes (‘2.5GBs’) of email data during the relevant time period (i.e. January 1, 2017 – February 7, 2021) that resulted in positive ‘hits’ for the identified search terms. This approximately 2.5GBs of email data constitutes approximately 5,000 emails and attachments that may be responsive to your PRR.” The Department explains “[c]onsidering the nature of services DDS provides to individuals with intellectual and developmental disability, it is likely many documents will contain individually identifying medical information of individuals other than your daughter receiving supports from DDS, or other confidential and/or exempt information. DDS personnel must review and redact the records to prevent disclosure of exempt or privileged information of those other individuals…” citing Health Insurance Portability and Accountability Act (“HIPAA”) and M.G.L. c. 66A, § 2, the Massachusetts Fair Information Practices Act (“FIPA”) pursuant to Exemption (a); and Exemptions (c), (d), and (f). The Department also cites attorney- client privilege as an applicable exemption to “[c]ommunications between DDS staff and the DDS Legal Office…” The Department indicates it “estimates that approximately 125 hours of personnel time will be required for reviewing and redacting the estimated 5,000 documents (5,000 ÷ 40 documents per hour = 125 hours). Accordingly, at a rate of $25 per hour, the estimated fee for reviewing and redacting these records is $3,125.00 (125 hrs x $25/hr = $3,125).” The Department further indicates “[o]nce IT staff processes the ESI and uploads the same for review, DDS staff will begin to review and redact the records as required by law. DDS estimates 40 documents per hour for reviewing email records.” The Department explains “[m]any of the emails may have attachments in the form of PDF and/or Word documents which also need to be reviewed. Emails 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…[b]ecause emails are more likely to be subject to several exemptions, they require closer scrutiny to apply mandated redactions.”

Erin G. Brown, Esq. SPR21/0493 Page 3 March 11, 2021 In his appeal petition, Mr. Willis contends “…you are not stating: [h]ow and [w]hy [sic] the exemptions apply to the redacted or withheld portions or complete record of what is requested.’” Based on the foregoing, it is unclear what the basis of Mr. Willis’s appeal is. Mr. Willis is advised that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(l)(f). Accordingly, Mr. Willis must describe his specific objections to the Department’s February 23rd response. Conclusion Based on the above, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Wayne Willis James Bergeron, Esq.