Christopher Hart v. Executive Office of Health & Human Services (SPR 20210984)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 23, 2021 SPR21/0984 Patricia M. Scanlan Primary Record Access Officer Executive Office of Health and Human Services One Ashburton Place, 11th Floor Boston, MA 0210/8 Dear Ms. Scanlan: I have received the petition of Attorney Christopher Hart of Foley Hoag LLP appealing the response of the Executive Office of Health and Human Services (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 12, 2021, Attorney Hart requested numerous documents from the Office regarding COVID-19 vaccine distribution policies and communications. Previous Appeals This request was the subject of previous appeals. See SPR21/0917 Determination of the Supervisor of Records (March 12, 2021); SPR21/0659 Determination of the Supervisor of Records (April 21, 2021). The Office responded on April 13, 2021. Unsatisfied with the response, Attorney Hart appealed and SPR21/0984 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) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 950 C.M.R. 32.06(3); see 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

Patricia M. Scanlan SPR21/0984 Page 2 April 23, 2021 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). 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). The Office’s April 13th Fee Estimate In its April 13th response, the Office stated, “… enclosed herewith [are] three (3) records responsive to item 1 of the PRR. No material has been redacted.” The Office further incorporated its March 26th response in which it identified 8,169 records which are potentially responsive to Attorney Hart’s request. The Office provided a fee estimate of $7,025.00 as follows: “… at a rate of $25 per hour, the estimated fee for reviewing and redacting these records is $5,000.00. With the vendor’s costs of $2,025.00, the total estimated costs for segregating and redacting these records is $7,025.00. ($2,025.00 + $5,000.00 = $7,025.00; 204 hours – 4 statutory hours = 200 hours x $25 = $5,000.00).” The Office stated, “… [it] may charge 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. G.L. c. 66, § 10(d)(ii). [The] Office 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 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).” The Office asserted that, “… [it] estimates 204 additional hours of personnel time will be required to review, redact, and assemble records for production. The number of hours has been calculated by estimating an average review and redaction rate of 40 documents per hour

Patricia M. Scanlan SPR21/0984 Page 3 April 23, 2021 (8,169÷40=204). The 204 additional hours will be attributed to reviewing and redacting records as required by law. Once the review and redaction work is complete, the records will be assembled for production.” The Office cited Exemptions (a), (c), (d) and the attorney-client as justification to either redact or withhold exempt records. Based upon the above, it is unclear if the Office is charging for segregation and redaction of records which is not required by law. Further, the Office’s fee estimate has not explained with specificity why the indicated amount of time is necessary for producing the requested records. The Office must detail how much time is needed to search for records and how much time is needed to segregate and/or redact. The Office is reminded it cannot charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § l0(a); see G. L. c. 66, § l2; see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). Therefore, the Office cannot pass along its costs for use of its third-party vendor services. For these reasons, I find the Office must revise its fee estimate. Order Accordingly, the Office is ordered to provide a revised fee estimate to Attorney Hart in a 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: Christopher Hart, Esq.