Joseph Smith v. Executive Office of Health & Human Services (SPR 20211337)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 11, 2021 SPR21/1337 Patricia M. Scanlan, Esq. Assistant General Counsel Executive Office of Health and Human Services One Ashburton Place, 11th Floor Boston, MA 02108 Dear Attorney Scanlan: I have received the petition of Joseph Smith appealing the response of the Executive Office of Health and Human Services (EOHHS) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Smith requested: “…any public records EOHHS holds related to any McKinsey & Company consulting work as well as the same from the Edward Davis Company in regard to student transportation for reopening plans during the pandemic. I request any communications with McKinsey & Company or the Edward Davis Company that are a public record held by EOHHS in regard to student transportation during the pandemic from May 1, 2021 through the date of the request (May 11, 2021).” On May 25, 2021, the EOHHS provided Mr. Smith with a fee estimate for $525.00 to provide him with responsive records. Unsatisfied with the amount of the fee estimate, Mr. Smith petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Fees - agencies If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). 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 Scanlon, Esq. SPR21/1337 Page 2 June 11, 2021 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). 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The EOHHS’ May 25, 2021 fee estimate In its May 25th response, the EOHHS estimates that it will require 25 hours less 4 hours of time, to segregate and redact the responsive records for a total of 21 hours of segregation and redaction, and a total estimated cost to Mr. Smith of $525.00. The Regulations provide that in cases where it is necessary to reproduce the requested records, a records access officer (RAO) may charge a fee to search for, compile, segregate, redact or reproduce a record requested based on the hourly rate of the lowest paid employee who is capable of performing the task. G. L. c. 66, § 10(d); see also 950 C.M.R. 32.07(2). ----- Additionally, the reasonable fee for reproduction shall not exceed the actual cost of reproducing the record. Id. In its May 25th estimate, the EOHHS states, “[a]fter an initial search, EOHHS identified approximately 1,000 emails (approximately 2GB of data) that are potentially responsive to this request and are in EOHHS’ possession, custody, and control.” The EOHHS indicates that it must review (segregate) records for responsiveness, any applicable privileges and exemptions, and then make necessary redactions, as required by law. The EOHHS assessed an hourly rate of $25 per hour to segregate and redact the records, explaining, “EOHHS 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 C.M.R. 32.07(2).” In addition, the EOHHS explains, “[p]otentially responsive records may contain information that must be withheld or redacted based on several factors, including attorney-client privilege; information that constitutes attorney work product; personal information the disclosure of which may constitute an unwarranted invasion of personal privacy; or medical information.” The EOHHS cited the common law attorney-client privilege, work product, the privacy rule of

Patricia Scanlon, Esq. SPR21/1337 Page 3 June 11, 2021 the Health Insurance Portability and Accountability and Act (HIPAA), and the Fair Information Practices Act as applicable in this request.” To the extent that responsive records contain attorney-client privileged information, and other information that may be withheld by law, the EOHHS may charge for time spent segregating and redacting this information. Where such redaction is not required by law, the EOHHS must seek approval of the Supervisor through a petition under G. L. c. 66, § 10(d)(iv). See 950 C.M.R. 32.07(2)(d). To the best of my knowledge, it is unclear whether the EOHHS has filed a petition to charge for segregation and/or redaction that is not required by law. See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). The EOHHS indicates, “…25 hours of personnel time will be required to segregate and redact the 1,000 records for production. The number of hours has been calculated by estimating an average review and redaction rate of 40 documents per hour (1,000÷40=25).” It is unclear how the EOHHS arrived at its calculation of 40 documents per hour, and whether the EOHHS has based its estimate on segregating and redacting a sample of the documents. The EOHHS must clarify how much time it will take to segregate and redact information required by law. Modification of Request In its response, the EOHHS suggests that in order to limit the fees, Mr. Smith may wish to narrow the request to a particular date range, or for particular individuals. This office encourages Mr. Smith and the EOHHS 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). The EOHHS is advised, any updated fee estimate must be in compliance with this determination, the Public Records Law, and its Access Regulations. Conclusion Accordingly, the EOHHS is ordered to provide Mr. Smith with a response to the request, 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.

Patricia Scanlon, Esq. SPR21/1337 Page 4 June 11, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Joseph Smith