David S. Kassel v. Department of Developmental Services (SPR 20220856)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 27, 2022 SPR22/0856 Brian Fleming, Esq. Assistant General Counsel Records Access Officer Department of Developmental Services 1000 Washington Street Boston, MA 02118 Dear Attorney Fleming: I have received the petition of David Kassel appealing the response of the Department of Developmental Services (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 11, 2022, Mr. Kassel requested the following: Any and all records, generated from September 1, 2021, to the present, that concern closures or consolidations of DDS state-operated group homes for any reasons including, but not limited to, unvaccinated staff and direct-care staffing shortages. [He] request[ed] that these records include, but not be limited to, emails, memoranda, and notices concerning the above. Additionally, Mr. Kassel provided a set of search terms for use in his request. The Department responded on March 25, 2022, providing a fee estimate. Objecting to the fees, Mr. Kassel appealed, and this case 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 agency or municipality 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

Brian Fleming, Esq. SPR22/0856 Page 2 April 27, 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. Att’y 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 Estimates 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). Current Appeal Mr. Kessel notes that the current request is identical to a request he submitted in October 2021. He further notes that the Department responded to that request by identifying and withholding eight responsive emails. In his appeal petition, Mr. Kassel raises the following two arguments: 1. The DDS response does not explain why the number of potentially responsive emails would increase from 8 to 1,061, thereby necessitating a large processing fee. The same search terms were used in both PRRs. 2. The DDS response does not make it clear which exemptions to the Public Records Law would apply with respect to my refiled PRR. The DDS response merely speculates about exemptions that would be “likely” to apply. As a result, I am

Brian Fleming, Esq. SPR22/0856 Page 3 April 27, 2022 concerned that my organization may well pay the required $662.50 fee to DDS and still ultimately receive no records from the Department. With regard to the number of responsive emails produced by the search, please note that in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii), (b)(ii). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). In this case, the Department has used its superior knowledge of the records to search its email archives and determined an estimate for the number of emails responsive to the request. With regard to Mr. Kassel’s objections regarding the Department’s exemption claims and claims of attorney-client privilege, please be advised that where the Department is yet to produce the records, I find that this matter cannot be addressed at this time, as the contents of these records are unclear. Once records are provided, Mr. Kassel may appeal the substantive nature of the Department’s response within ninety calendar days. See 950 C.M.R. 32.08(1). The Department’s March 25th Response In its March 25, 2022 response, the Department states that it has “approximately 399.86 MB of email data [which] constitutes approximately 1,061 emails and attachments that may be responsive to [Mr. Kassel’s] PRR,” and provides a total fee estimate of $662.50. The Department provides the following information concerning the amount of time it requires to make the required redactions: DDS has already expended more than four (4) hours working on this PRR, including identifying sources of potentially responsive electronic records, developing search queries, coordinating with Commonwealth IT staff to identify, segregate, and collect electronically stored information (“ESI”), and issuing this good faith estimate letter. . . . DDS estimates 40 documents per hour for reviewing e-mail records. This number is a good faith estimate and may be higher or lower depending on the type of records to be reviewed. Many of the emails may have attachments in the form of PDF and/or Word documents which also need to be reviewed. . . . DDS estimates that approximately 26.5 hours of personnel time will be required for reviewing and redacting the estimated documents (1061 ÷ 40 documents per hour = 26.5 hours). Accordingly, at a rate of $25 per hour, the estimated fee for reviewing and redacting these records is $662.50 (26.5 hrs x $25/hr = $662.50).

Brian Fleming, Esq. SPR22/0856 Page 4 April 27, 2022 The Department provides the following information concerning redactions required by law: Considering the nature of services DDS provides to individuals with intellectual and developmental disability, it is likely many documents will contain individually identifying medical information of individuals receiving supports from DDS, or other confidential and/or exempt information. DDS personnel must, therefore, review and redact the records to prevent disclosure of exempt or privileged information of those other individuals. The Department further explains that it will need to redact the responsive records pursuant to Exemption (a) of the Public Records Law, 42 U.S.C. 1320d, et seq. (Health Insurance Portability and Accountability Act (“HIPAA”) Privacy Rule), G.L. c. 123B, § 17 and 115 CMR 4.00 et seq., and also pursuant to the attorney-client privilege. In addition, the Department states that it will need to redact records pursuant to Exemption (c) and (d) of the Public Records Law. As noted above, 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)(iii); 950 C.M.R. 32.06(4). Accordingly, while the Department may assess a fee for segregation and redaction pursuant to Exemption (a) and the attorney-client privilege, the Department is not permitted to assess a fee for segregation and redaction under Exemptions (c) and (d). For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). In its response, the Department also offers to discuss with Mr. Kassel ways to narrow the scope of his request in order to reduce the cost of fees. This office encourages Mr. Kassel and the Department to communicate directly to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency 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 to produce the records sought more efficiently and affordably). Conclusion Accordingly, the Department is ordered to provide Mr. Kassel with a response to his 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.

Brian Fleming, Esq. SPR22/0856 Page 5 April 27, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: David Kassel