Lynn Jolicouer v. Department of Housing & Community Development (SPR 20212279)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records Spetember 14, 2021 SPR21/2279 Adrian Walleigh, Esq. Department of Housing & Community Development Office of the General Counsel 100 Cambridge Street, Suite 300 Boston, MA 02114 Dear Attorney Walleigh, On September 7, 2021, I received your petition on behalf of the Department of Housing & Community Development (Department) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, the Department furnished a copy of its petition to the requestor, Lynn Jolicouer of WBUR. Id. On August 10, 2021, Ms. Jolicouer requested “[a]ny formal complaints filed with DHCD in the last ten years against [an identified individual], Our Father’s House or any homeless shelter in Massachusetts.” Fee Estimate 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). 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

Adrian Walleigh, Esq. SPR21/2279 Page 2 September 14, 2021 Current Petition In its September 7th pettion, the Department expressed it “…has conducted a search and identified approximately 63,000 responsive records. After a preliminary review of those records, DHCD provided the requestor with a good faith estimate of $52,500 on September 7, 2021.” The Department explains “[t]he basis of that estimate, as set forth in the attached letter to the requestor, details the following exemptions we are requesting the Supervisor exercise her discretion in approving this fee, which include: • The responsive records may contain social security numbers, home addresses, date of birth and other 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. • In addition, the responsive records may contain medical documents or medical information that are exempt from disclosure the Health Insurance Portability and Accountability Act of 1996 (HIPAA). • The Massachusetts Rules of Professional Conduct and the common law prohibit an attorney from releasing privileged materials without the consent of a client. In this case, the privilege has not been waived with respect to any privileged material contained in the requested messages. The responsive records may include DHCD lawyers providing legal advice relating to their clients.” The Department contends that “[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.” The Department estimates “[f]our hours of staff time spent retrieving records (will not be charged to requestor). 2,100 hours of staff time to review and redact the records (two minutes per message x 63,000 messages = 2,100 hours).” Conclusion Given the public interest served by limiting the cost of public access to the requested records, permission to charge for time spent segregating or redacting responsive records cannot be granted. However, this does not preclude the Department from charging for segregation and redaction that is required by law.

Adrian Walleigh, Esq. SPR21/2279 Page 3 September 14, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Lynn Jolicouer