Daniel D. Jaffe v. University of Massachusetts Medical School - Office of Management (SPR 20221033)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 17, 2022 SPR22/1033 Laura J. Harris, J.D. Legal Associate Office of Management University of Massachusetts Medical School 55 Lake Avenue North Worcester, MA 01655 Dear Attorney Harris: I have received the petition of Daniel D. Jaffe, of Committee for Public Counsel Services, appealing the response of the UMass Medical School (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 23, 2022, Mr. Jaffe requested the following records: 1. From January 1, 2017, to the present, any contracts, agreements, memorandums, and correspondence regarding drug sample submissions between UMM DAL and the Massachusetts Department of Correction (DOC). 2. From January 1, 2022, to the present, for all drug samples submitted by DOC which were found to contain synthetic cannabinoids after testing: full lab packets, drug certificates, and a sample tracking spreadsheet with all available fields/columns. 3. From January 1, 2022, to the present, for all drug samples submitted by DOC which were found to contain no detectable drugs after testing: full lab packets, drug certificates, and a sample tracking spreadsheet with all available fields/columns. The School responded on March 31, 2022 and April 5, 2022. Unsatisfied with the responses, Mr. Jaffe petitioned this office and this appeal, SPR22/1033, was opened as 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). 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

Laura J. Harris, J.D. SPR22/1033 Page 2 May 17, 2022 Agencies may not assess a fee for the first 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 School’s fee estimate In its April 5th response, the School gave a fee estimate of $17,300.00 and stated the following: Search/Compile: 192 hrs $25/hr = $4,800 ($0 for first 4) Segregation / Redaction: 500 hrs at $25/hr = $12,500 Total = $17,300.00 In its March 31st response, the School cited. “… exemption (c) … because the disclosure may constitute an unwarranted invasion of personal privacy [and] exemption (a) … because the disclosure is statutorily exempt given the provisions of G.L. c. 6, s. 167.” Although the School has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 692 hours of employee time, it is unclear how the School requires this many hours to produce responsive records. It is also not clear what tasks are involved to prepare responsive records for production. As such, the School must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). The School must confirm that the rate of $25.00 is that of the lowest paid employee capable of performing such work. Further, although the School explained that redactions are necessary based upon certain exemptions, it is unclear whether the School is charging for 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)). For the reasons discussed above, I find the School must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). I encourage Mr. Jaffe and the School to communicate further in order to facilitate producing records efficiently and affordably. Mr. Jaffe may wish to include applicable time

Laura J. Harris, J.D. SPR22/1033 Page 3 May 17, 2022 periods or factors to enable the search to be processed such as narrowing the key words to three or less words. G. L. c. 66, § l0(a)(i). The School 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). Conclusion Accordingly, the School is ordered to provide Mr. Jaffe with a response to the 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Daniel Jaffe