David S. Kassel v. Department of Developmental Services (SPR 20221090)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 23, 2022 SPR22/1090 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. Previous Appeal This request was the subject of a previous appeal. See SPR22/0856 Supervisor of Records Determination (April 27, 2022). In my April 27th determination, I found that 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). Accordingly, I ordered the Department to revise its fee estimate. Subsequently, the Department responded to Mr. Kassel on May 10, 2022. Unsatisfied with the Department’s response and 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 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. SPR22/1090 Page 2 May 23, 2022 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). 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). The Department’s May 10th Response In its May 10, 2022 response, the Department provides the following info: DDS requested information technology staff to conduct a search and collect all DDS emails and records responsive to [the] request between and inclusive of September 1, 2021, to March 11, 2022, resulting in approximately 1,061 emails and attachments that may be responsive to [the] PRR, charging a fee of $662.50. DDS estimated that approximately 26.5 hours of personnel time will be required for reviewing and redacting the 1,061 documents (1061 ÷ 40 documents per hour = 26.5 hours). Accordingly, at a rate

Brian Fleming, Esq. SPR22/1090 Page 3 May 23, 2022 of $25 per hour, the estimated fee for reviewing and redacting these records is $662.50 (26.5 hrs x $25/hr = $662.50). . . . For this PRR, as stated in its fee estimate, DDS must segregate and redact the records to remove information prohibited from disclosure by the Health Insurance Portability and Accountability Act (“HIPAA”) Privacy Rule, 42 U.S.C. 1320d, et seq., and its implementing regulations, 45 CFR Parts 160 and 164; DDS’ statute and regulations, M.G.L. c. 123B, § 17 and 115 CMR 4.00 et seq. (“DDS specific statutes”); M.G.L. c. 66A, § 2, the Massachusetts Fair Information Practices Act (“FIPA”); and the attorney- client privilege. DDS simultaneously reviews the records for applicable exemptions, such as exemptions (c) and (d). DDS’ review for applicable exemptions is not distinguishable from its review to remove material pursuant to HIPAA, FIPA, the DDS-specific statutes, and the attorney client privilege, and does not increase the number of personnel hours required to segregate and redact the material. In light of the Department’s May 10th response, where the Department indicates it will not be assessing an additional fee for redactions under Exemption (c) and (d), I find the Department has met its burden to explain how it has provided a reasonable fee estimate for the production of records responsive to this request. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). Current Appeal In his appeal petition, Mr. Kassel contends that the Department “misinterprets the meaning and intent of ‘Exemption d’ to the Public Records Law.” He goes on to argue that “Executive Order No. 595 was set as policy on August 19, 2021, when Governor Baker signed it. Therefore, [Mr. Kassel] would assert that Exemption d does not apply in this case because the policy underlying the executive order has been set for more than eight months and is therefore no longer being developed.” I understand Mr. Kassel also discussed these concerns with a staff attorney of the Public Records Division during a phone conversation on May 12, 2022. Please be advised, where the Department has yet to produce the records, I am unable to address the claims concerning Exemption (d) 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). Conclusion As set forth above, I find the Department has met its burden in responding to Mr. Kassel’s request at this time. Any revision to the request would result in the requirement to issue a revised fee estimate. Accordingly, I will consider this administrative appeal closed.

Brian Fleming, Esq. SPR22/1090 Page 4 May 23, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: David Kassel