Wayne Willis v. Department of Developmental Services (SPR 20213335)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 6, 2022 SPR21/3335 Brian Fleming, Esq. Assistant General Counsel Executive Office of Health & Human Services Department of Development Services 1000 Washington Street Boston, MA 02118 Dear Attorney Fleming: I have received the petition of Wayne Willis appealing the response of the Department of Development Services (Department) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On November 10, 2021, Mr. Willis requested, “… email correspondence between [identified] DDS employees … and any other party(s) included in the email, regardless of the Subject Matter from the dates: 9/19/2019 to 9/23/2019, and from the dates 10/21/2019 and 10/25/2019.” On November 23, 2021, the Department responded. Unsatisfied with the Department’s response, Mr. Willis petitioned this office and this appeal, SPR21/3335, was opened as a result. Fee estimate - 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 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. 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

Brian Fleming, Esq. SPR21/3335 Page 2 January 6, 2022 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). The Department’s November 23rd Fee Estimate The Department estimated a fee of $1,067.50 and explained as follows, “DDS estimates that approximately 42.7 hours of personnel time will be required for reviewing and redacting the estimated 1,707 documents (1,707 ÷ 40 documents per hour = 42.7 hours). Accordingly, at a rate of $25 per hour, the estimated fee for reviewing and redacting these records is $1,067.50 (42.7 hrs x $25/hr = $1,067.50).” Waiver of fees In his appeal, Mr. Willis requested that the Department waive applicable fees. Mr. Willis is advised that while a record custodian may waive applicable fees, the Supervisor has no authority to order that a record custodian do so. In support of the estimated fee, the Department further stated, “DDS does not have an employee with such necessary skill who is paid less than $25 per hour. Consistent with the PRL, the first four (4) hours of personnel work are free of charge; thereafter, an hourly rate of $25 will be charged. M.G.L. c. 66, § 10(d); 950 CMR 32.07(2).” The Department asserted that it may be required to redact the requested records pursuant to Exemptions (a), (c), (d), (f) and the attorney-client privilege. 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). Although the Department has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 42.7 hours of employee time, it is unclear how the Department requires 42.7 hours to produce responsive records. It is also not clear from the Department's estimate how many hours are allocated to search, and how many hours are allocated for segregation and redaction of the records that is required by law. Further, it is not clear what tasks are involved to prepare responsive records for production. As such, the Department must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). I encourage Mr. Willis and the Department to communicate further in order to facilitate producing records efficiently and affordably. Mr. Willis may wish to include applicable time periods or additional factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Department must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality 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

Brian Fleming, Esq. SPR21/3335 Page 3 January 6, 2022 would enable the agency or municipality to produce records sought more efficiently and affordably). For the reasons discussed above, the Department must revise its fee estimate. Conclusion Accordingly, the Department is ordered to provide Mr. Willis with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: Wayne Willis