Thomas Marino v. Massachusetts Parole Board (SPR 20220254)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 17, 2022 SPR22/0254 Stacy Book Records Access Officer Massachusetts Parole Board 12 Mercer Road Natick, MA 01760 Dear Ms. Book: I have received the petition of Thomas Marino of This Week In Worcester appealing the response of the Massachusetts Parole Board (Board) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 20, 2021, Mr. Marino requested, “information from the Board related to the practice of requiring certain prospective parolees with SUD to take prescription Vivitrol.” Specifically, Mr. Marino requested: 1. All Documents related to the policy, its implementation and its execution. 2. Clinical and medical documentation considered by the board in creating the policy. 3. All emails between all employees or other personnel within the Parole Board and anyone with email address that includes @ alkermes.com. The Board provided a response and fee estimate on January 11, 2022. Unsatisfied with the Board’s response, Mr. Marino petitioned this office and this appeal, SPR22/0254, 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

Stacy Book, RAO SPR22/0254 Page 2 February 17, 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. 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. 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 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). The Board’s January 11th Response On January 11, 2022, the Board provided a fee estimate of $487.50 explaining, “[t]his amount accounts for employee time to identify, extract, review, redact and copy 470 emails. The assessed rate/production time is 3 minutes per email at a rate of $25 per hour, the hourly rate less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for the requested records. This amount also excludes the first four hours of labor involved in this request.” In its January 11th response, the Board further explained, “[t]his sum is based on the

Stacy Book, RAO SPR22/0254 Page 3 February 17, 2022 following breakdown”: • 3 minutes of time/labor to identify, extract, review, redact, and copy 470 emails = 1,410 minutes or 23.5 hours • Total number of hours for production of 470 = 23.5 hours – 4 free hours = 19.5 hours • Hourly rate of $25 (less than the hourly rate of the lowest paid Parole Board employee qualified to do the work) x 19.5 hours = $487.50. Based on the Board’s January 11th fee estimate, it is unclear why the Board requires the amount of time listed above to produce the requested records. The Board must provide further information on the details regarding the tasks involved, including the time it is allocating to compiling, segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). The Board must clarify these matters, including the time that is needed to perform segregation and redaction as required by law. Additionally in the January 11th response, the Board stated, “[d]ue to the magnitude and complexity of [Mr. Marino’s] request, more time is needed for the complete production of records responsive to [Mr. Marino’s] request. The Board requests an extension of six weeks to provide a complete response to [Mr. Marino’s] requests for the specified emails. If [Mr. Marino] objects to this proposed extension of time to produce the records responsive to [his] request, please respond by email immediately, so that a petition for extension of time may be filed with the Secretary of State's Office. Additionally, if [Mr. Marino’s] wishes to modify or narrow [his] request, please notify me immediately.” In Mr. Marino’s appeal to this office, he explained, “[o]n January 12 (sent after business hours, making its effective date January 13) I responded to the Board to ask a question: ‘Is it possible to provide a list of the senders and receivers of these emails? I can make much more refined selections with that.’ Any reasonable reviewer should interpret this message as intended to find a solution to a reduced request.” Mr. Marino elaborated that “[w]hile the Board did respond to the initial request within the required time frame, its failure to respond to simple queries after the initial request should have the same consideration of severity. It is clear the intent of the legislature was not for the Board to respond to the initial inquiry and then ignore the requestor.” This office continues to encourage Mr. Marino and the Board to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii) (a 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 would enable the municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Board is ordered to provide Mr. Marino with a response to this request, provided in a manner consistent with this order, the Public Records Law, and its Regulations

Stacy Book, RAO SPR22/0254 Page 4 February 17, 2022 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 the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Thomas Marino; This Week In Worcester