Sarah L. Ryley v. Department of Children and Families (SPR 20220146)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 10, 2020 SPR20/0146 Roger Randall, Esq. Counsel to the Commissioner Department of Revenue 100 Cambridge Street, 7th Floor Boston, MA 02114-2582 Dear Attorney Randall: I have received the petition of Colman Herman appealing the response of the Department of Revenue (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on December 24, 2019, Mr. Herman requested: [H]ard copies and electronic copies of any and all communications related to the state auditor's 2019 report on information security at the department of revenue. Communications include, but are not limited to, emails, letters, memoranda, faxes, and notes. Please be aware that if any related communications were done through personal email accounts, text messaging, etc., these vehicles must be searched for responsive public records. Previous appeal The requested records were the subject ofa previous appeal. See SPR20/0047 Determination of the Supervisor of Records (January 23, 2020). I closed SPR20/0047 after I learned that the Department provided Mr. Herman with a fee estimate, on January 20, 2020. Objecting to the fees, Mr. Herman petitioned this office and this appeal, SPR20/0146, was opened as a result. While this appeal was pending, the Department provided a supplemental response dated January 28, 2020. 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, § lO(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. 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

Roger Randall, Esq. SPR20/0146 Page 2 February 10, 2020 G. L. c. 66, § lO(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, § lO(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). The Department's January 201 fee estimate " In its January 20, 2020 fee estimate, the Department indicates that it has" ... located about eight emails or email chains and a few attachments." The Department explains that "[s]o far [it] ha[s] incurred approximately 12 hours of employee time .... The statute entitles [the Department] to charge after the first four hours. [The Department] will need about three more hours to review the contents of the potentially responsive emails and attachments for the exemption in G.L. c. 4, § 7, clause 26(n) [cyber security], for prohibition on disclosure by G.L. chapter 62C, § 21(a) or§ 21(d), for attorney-client privilege, or other grounds for non-disclosure, which review is legally required in the case of [the Depaiiment] materials. That brings the estimated time to 15 hours." The Department further states that it " ... reserves the right to file with the Supervisor of Public Records a request, under section 10( d)(iv), permission to charge the actual hourly rates of the necessary employees, instead of $25 per hour. The actual hourly rate of the least expensive employees with the necessary skill to do the several tasks involved ... is substantially more than $25. Until [the Department] ha[s] that permission, the estimate of the charges is 11 hours x $25/hour, or $275." The Department's January 281 supplemental response " In response to Mr. Herman's request, that the Department waive the above fee, on January 28, 2020, the Department indicated that it is" ... waiving the fee for this one search. However, please know that these searches are time-consuming (approximately 15 hours of valuable employee-time in this instance) and are therefore expensive. [The Department] reserve[s] the right to charge a fee under section lO(d) (and all its sub-sections) for any future request." The Department provided the responsive email records for the time period, October 17, 2019, to December 3, 2019. In his appeal petition, Mr. Herman states "[f]or the fomih time [the Department] fails to inform me of my right of appeal. I, of course, am aware of this right, but I am concerned that [the Department] also fails to tell requesters who may now [sic] that they have this right of appeal."

Roger Randall, Esq. SPR20/0146 Page 3 February 10, 2020 Please note that under the Public Records Law, when responding to a public records request, the agency is required to "include a statement informing the requestor of the right of appeal to the supervisor of records under subsection (a) of section 1O A and the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court under subsection (c) of section lOA." G. L. c. 66, § lO(b)(ix). Conclusion Accordingly, in light of the Depaiiment's January 28th supplemental response, waiving its proposed fee and producing responsive records, I will consider this administrative appeal closed. Mr. Herman may appeal the substantive nature of the Department's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman