Andrea Wiener v. Department of Occupational Licensure (SPR 20212119)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 24, 2021 SPR21/2119 Mr. Bruce Hopper Department of Occupational Licensure 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Mr. Bruce Hopper: I have received your petition on behalf of the Department of Occupational Licensure (Department) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor, Ms. Andrea Wiener. Id. In a letter dated August 6, 2021, Ms. Wiener requested: copies of public records of any type or sort that reference or relate to the practice of the Feldenkrais Method or Feldenkrais. Please include public records from the Board of Registration for Massage Therapy, the Board of Allied Health Professionals, and staff of the Division of Occupational Licensure, related to complaints, investigations or prosecutions of any type of misconduct, improper practice or criminal behavior. Under the Massachusetts Public Records Law G.L. c. 66, §10 et seq., as recently amended, I am requesting copies of public records of any type or sort, from the Board of Registration for Massage Therapy, the Board of Allied Health Professionals, and staff of the Division of Occupational Licensure, that reference or relate to complaints, investigations or prosecutions of any type of misconduct, improper practice or criminal behavior, in relation to the practice of the Feldenkrais Method or Feldenkrais. Petition 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: 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

Mr. Bruce Hopper SPR21/2119 Page 2 August 24, 2021 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 an agency’s petition to allow the agency 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. The second prong of the test is whether the fee represents an actual and good faith representation by the agency 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 The August 19, 2021 petition explains that the Department has “conducted a search and identified approximately 5,290 responsive records that includes 5,240 emails and an estimated 50 complaint files.”

Mr. Bruce Hopper SPR21/2119 Page 3 August 24, 2021 The Department notes that the responsive records “contain social security numbers, home addresses, and date of birth information that are exempt pursuant to the second (privacy) clause of G.L. c. 4, § 7(26)(c), because its disclosure would constitute an unwarranted invasion of personal privacy not outweighed by the public’s interest in disclosure of the material,” that “[s]ome of the potentially responsive records could 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 the possibility of effective enforcement and are exempt from disclosure pursuant to the Investigatory Exemption, G.L. c. 4, §(26)(f).” Finally, the Department states that “[t]he records include a number of emails from DOL lawyers providing legal advice relating to discipline, legislation (current and/or proposed), regulations and/or policies (current and/or proposed). Accordingly, segregation and redaction are required by law.” The Department explains, in order to “ensure that proper procedures are maintained to prevent the dissemination of information which is protected from disclosure by law,” review and segregation of records is required. In this case, the Department claims “[s]egregation and redaction of messages often involves the application of multiple exemptions to the public records law to a single record. Some information is simultaneously protected by more than one exemption or different exemptions depending on context or the time of disclosure.” Therefore, “[t]he fee estimates provided are for the segregation and redaction process as a whole, and in the view of undersigned, cannot be split up by exemption. Since some of the segregation and redaction process is required by law, [the Department] is entitled to charge a fee for that portion does not view a petition for such exemptions as a necessary prerequisite, but is included herein for completeness.” Conclusion It is my determination that, given the nature of the requested records and the explanation in its petition, the Department is permitted to charge for time spent segregating and redacting the requested records. When preparing a fee estimate for the provision of the requested records the Department is advised to provide a detailed explanation to the requestor detailing why the amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Department must also provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. The Department must provide a response to Ms. Wiener within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Please note, Ms. Wiener 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, § 10(d)(iv)(4),10A(c).

Mr. Bruce Hopper SPR21/2119 Page 4 August 24, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Ms. Andrea Wiener