Wayne Willis v. Department of Developmental Services (SPR 20212405)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 27, 2021 SPR21/2405 Erin G. Brown, Esq. Department of Developmental Services 1000 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) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 23, 2021, Mr. Willis requested “[a]ny and All email, regardless of the Subject, sent to, CC’d to, or received by [a named] DDS employee . . . on 1/23/2020 and 1/24/2020.” The Department responded on September 7, 2021, providing a fee estimate, and indicating that the responsive records are the subject of two administrative proceedings currently pending before the Department. Objecting to the fees, Mr. Willis appealed, and this case 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 agency or municipality 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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 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. SPR21/2405 Page 2 September 27, 2021 custodian must provide the responsive records. Fee Estimates – 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 four 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 Appeal In his appeal petition, Mr. Willis contends the following: 1. Fee waiver law in General is ignored. DDS RAO makes their own PRR rules. 2. Fee waiver specific to: PRR2021-59 ($73.75 payment). The reason for [his] PRR fee waiver specifically ignored: Public Interest! 3. It appears that Public Interest is not a good enough reason for the DDS RAO to waive PRR fees, if the information that will be released is detrimental to DDS, or other political entities. The Department’s September 7th Response In its September 7, 2021 response, the Department provides a fee estimate for $73.75, and indicates that Mr. Willis “may request access to documents without charge by engaging in voluntary discovery” in two pending administrative proceedings. Fee waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in

Erin G. Brown, Esq. SPR21/2405 Page 3 September 27, 2021 the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k) (emphasis added). Pending Administrative Matter 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In its September 7th response, and in a phone conversation with this office on September 27, 2021, the Department confirmed that the records at issue in this appeal are the subjects of two administrative matters currently pending before the Department. See Matter of Willis, Docket nos. DDS2021-010B(Budget) and DDS2021-011W(POC). Conclusion In light of the pending administrative matters, it is my determination that the records at issue in this appeal are the subjects of disputes in active administrative proceedings. Accordingly, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of these actions could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Rebecca S. Murray Supervisor of Records cc: Wayne Willis