Brooks Egerton v. Department of Public Health (SPR 20213354)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 7, 2022 SPR21/3354 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.” Previous Appeals The records sought have been the subject of previous appeals. See SPR21/2709 Supervisor of Records Determination (October 27, 2021); SPR21/2982 Supervisor of Records Determination (November 18, 2021); SPR21/3262 Supervisor of Records Determination (December 22, 2021). In SPR21/3262, I held that Mr. Egerton did not allege a violation of G. L. c. 66, § 10 and that he could appeal the substantive nature of the Department’s November 8, 2021 fee estimate within 90 days. Unsatisfied with the Department’s November 8, 2021 response, Mr. Egerton petitioned this office and this appeal, SPR21/3354, 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). 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 SPR21/3354 Page 2 January 7, 2022 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. 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 November 8th Fee Estimate In its November 8, 2021 fee estimate, the Department stated: On September 30, 2021, the Department responded stating that it identified approximately 2,900 pages of records that may be responsive to your request …The Department estimates 34 hours of personnel time will be required to segregate, redact, and assemble the responsive records for disclosure. This includes one hour to search for, identify, and retrieve potentially responsive records and to assemble the records for production, and 33 hours to review the

Helen Rush-Lloyd SPR21/3354 Page 3 January 7, 2022 records and perform any redactions required by law. The number of hours has been calculated by estimating an average review and redaction rate of 88 pages per hour (approximately 2,900 pages divided by 88 pages per hour = 32.95 hours)… The records at issue may be subject to several exemptions from public records law…For instance, responsive records may contain medical information that would be categorically exempt from disclosure pursuant [to] G.L. c. 4, § 7, clause 26(c) and other personal information, the disclosure of which may constitute an unwarranted invasion of privacy and therefore also be exempt pursuant to G.L. c. 4, § 7, clause 26(c). Moreover, information exempted from disclosure due to privacy concerns may also be exempt from disclosure by statute or necessary implication…Specifically, information of a highly personal nature may be subject to G.L. c. 66A, the Massachusetts Fair Information Practices Act (FIPA) and therefore exempt pursuant to G.L. c. 4, § 7, clause 26(a)… At a rate of $25 per hour, the total estimated fee for [the Department] to respond to your fee request is $750 ((34 hours – 4 complementary hours) x $25). Current Appeal On December 28, 2021, Mr. Egerton stated, Section 10 of the Act states, in relevant part “‘A records access officer may assess a reasonable fee for the production of a public records…’[emphasis mine]. It is unreasonable to charge me anything for records that Section 19 of the Act requires the dental board to post online [for free].” To the best of my knowledge, the Department has not submitted a petition under G.L. c. 66, § 10(d)(iv) to charge for segregation and redaction for materials falling under Exemption (c) of the Public Records Law. Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records. Further, it is unclear to what extent the Department intends to charge Mr. Egerton for redactions under Exemption (a) and Exemption (c) respectively. The Department must clarify this. Conclusion Accordingly, the Department is ordered to provide the requestor with revised fee estimate, 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.

Helen Rush-Lloyd SPR21/3354 Page 4 January 7, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Brooks Egerton