Sarah L. Ryley v. Department of Children and Families (SPR 20220543)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 21, 2022 SPR22/0523 Steven Treat. Esq. Assistant General Counsel Records Access Officer Department of Children and Families 600 Washington Street Boston, MA 02111 Dear Attorney Treat: I have received the petition of Sarah Ryley of the Boston Globe appealing the response of the Department of Children and Families (Department) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On February 8, 2022, Ms. Ryley requested “records generated internally, and records from outside organizations such as the Children’s League of Massachusetts” from Jan. 1, 2015 including: 1. Records generated from the Stabilization, Assessment, Rapid, Re-integration (STARR) task force, including but not limited to meeting minutes, reports, summaries, memos, letters, and presentations. 2. Any reports, summaries, memos, letters, and presentations pertaining to the conditions in congregate care facilities, including but not limited to issues such as the STARR program, staffing levels, runaways, and sex trafficking at congregate care facilities. On February 23, 2022, the Department responded. Unsatisfied with the Department’s response, Ms. Ryley petitioned this office and this appeal, SPR22/0523, 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, 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

Steven Treat, Esq. SPR22/0523 Page 2 March 21, 2022 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 Department’s February 23rd Fee Estimate In its February 23rd fee estimate, the Department indicated it had no records responsive to request number 1. The Department gave an estimate of $1,025.00 for records related to request number 2 as follows: Search for, identify, retrieve, and review potentially responsive records 24 hours Review, segregate, and redact records for public records exemptions or other protections against disclosure, as mandated by law 20 hours Assemble records for production 1 hour Complementary hours -4.0 Total hours 41 Total hours @ $25 per hour = $1,025.00 In its response, the Department identified approximately 6,900 documents of records that may be responsive to the request. The Department advised that “[t]he 24 personnel hours for searching and identifying responsiveness to your request are estimated at an average review of 360 documents per hour applied to the approximately 6,900 records identified … Additionally, 20 hours will be attributed to segregating and redacting records identified as responsive as required by law. DCF estimates 1,000 pages of responsive records to be identified to this request and estimates an average of 50 pages per hour to review, segregate and redact identified responsive records …” Further, the Department advised that the records will be reviewed for segregation and redaction by law pursuant to Exemption (a) and attorney-client privilege. The Department also advised that the responsive records may need to be redacted pursuant to Exemption (c) and the work product doctrine. The Department's fee estimate has not explained with specificity why the indicated amount of time is necessary for producing the requested records. The Department must explain what tasks are necessary to provide the records.

Steven Treat, Esq. SPR22/0523 Page 3 March 21, 2022 The Department indicated that it assessed an hourly rate of $25.00; however, it is unclear whether the Department used the hourly rate of the lowest paid employee capable of performing the tasks. See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.07(2)(i). The Department's must clarify this matter. Although the Department explained that redactions are necessary based upon statutes and regulations pursuant to Exemption (a) and attorney client privilege, it is unclear whether the Department is charging for segregation and redaction of materials that fall under exemptions that are not required by law. See G. L. c. 66, § l0(d)(iii) (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)). Ms. Ryley and the Department are encouraged to communicate further in order to facilitate producing records efficiently and affordably. Ms. Ryley may wish to narrow the parameters or include applicable time periods or 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 would enable the agency or municipality to produce records sought more efficiently and affordably). Accordingly, the Department is ordered to provide Ms. Ryley with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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: Sarah Ryley