Brooks Egerton v. Department of Public Health (SPR 20212709)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 27, 2021 SPR21/2709 Helen Rush-Lloyd Records Access Officer Department of Public Health 250 Washington Street Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition of Brooks Egerton appealing the response of the Department of Public Health (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 20, 2021, Mr. Egerton requested “…electronic copies of all Board of Registration in Dentistry discipline related documents created since 1/1/2014, such as statements of allegations, recommended decisions from administrative magistrates and judges, final decisions, board orders, resignations, stipulations, and agreements not to practice…If you have an actual spreadsheet of dental board actions, please email that to me as well.” The Department provided a fee estimate on September 30, 2021. Unsatisfied with the response, on October 15, 2021, Mr. Egerton petitioned this office and this appeal, SPR21/2709, 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); 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. 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

Helen Rush-Lloyd SPR21/2709 Page 2 October 27, 2021 Fee Estimates - 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). 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 Department’s September 30th Fee Estimate In its September 30, 2021 response, the Department stated: After a comprehensive search, DPH has identified approximately 2,900 pages of records that may be responsive to your request and subject to disclosure under the Public Records Law, G.L.c. 66. . . . As provided for in the law and regulations, the first four (4) hours of employee work are free of charge; thereafter an hourly rate of $25.00 will be charged. DPH’s good faith estimate of employee work time required to respond to your request is as follows: [0.5 hours to s]earch for, identify, and retrieve potentially responsive records[; 0.33 hours to r]eview records for public records exemptions or other protections against disclosure…[and; 0.5 hours to a]ssemble records for production [for a total of] 30.0 [hours]. Accordingly, at a rate of $25.00 per hour, the total estimated fee for email delivery of responsive records is $750.00. Please be aware that if the volume of documents is too large to be sent by email, or you are unable to receive production by email, your request will incur an additional charge for the media on which the documents are to be provided. An additional fee for postage may also

Helen Rush-Lloyd SPR21/2709 Page 3 October 27, 2021 apply. Current Appeal In an October 4, 2021 email supporting his October 15, 2021 appeal, Mr. Egerton stated, “…All agencies and municipalities are strongly urged to waive the fees associated with access to public records[, and] a fee for public record[s] may not be charged unless the [Department] responded to [me] within 10 business days…I first requested these records on Sept. 7 of this year.” Waiver of Fees Mr. Egerton is advised that while a record custodian may waive applicable fees, under the criteria in 950 C.M.R. 32.07(2)(k)(l-3), the Supervisor has no authority to order that a record custodian do so. Therefore, it is not within the Supervisor’s enumerated powers to either require or approve such a waiver. G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where Mr. Egerton submitted a request to receive public records on September 20, 2021, and the Department responded by providing a fee estimate on September 30, 2021, under G. L. c. 66, § 10(b), I find the Department may assess a reasonable fee to produce responsive records. Fees to search for, compile, segregate, and redact a records request Although the Department stated that it is assessing a $750 fee to produce responsive records, it is unclear how the Department calculated its fee. The Department estimates that it will need 0.5 hours to search for, identify, and retrieve potentially responsive records, 0.33 hours to review records for public records exemptions or other protections against disclosure, and 0.5 hours to assemble the records. The Department claims to require 30 hours to complete the tasks, despite their estimate totaling under 30 hours. The Department must clarify this matter. Further, it appears that the Department is charging “0.33 hours [to] [r]eview records for public records exemptions or other protections against disclosure, as mandated by law; perform redactions.” It is uncertain how redaction is required by law in this matter. For example, it is not clear what type of information is contained in the responsive records, and which statutes, if any, require redaction. Please note that under the Public Records Law, a fee may 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). I find that the Department must provide information

Helen Rush-Lloyd SPR21/2709 Page 4 October 27, 2021 about whether the responsive records contain information that is required by law to be segregated or redacted, as well as the applicable statutes, if any. Conclusion Accordingly, the Department is ordered to provide the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Brooks Egerton