Steven Brody v. Division of Occupational Licensure (SPR 20222478)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 16, 2022 SPR22/2478 Jessica L. Ellis, Esq. Assistant General Counsel for Public Affairs Division of Occupational Licensure 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Attorney Ellis: I have received the petition of Steven Brody appealing the response of the Division of Occupational Licensure (Division) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 9, 2022, Mr. Brody requested “records on file for” three named individuals, along with a specified “case file.” Previous Petition This request was the subject of a previous petition from the Division. See SPR22/2180 Determination of the Supervisor of Records (September 29, 2022). In my September 29th determination, I found that the Division may assess a fee for segregation and redaction of the responsive records. Concurrent with its petition to this office, the Division responded to Mr. Brody on September 23, 2022, providing a fee estimate. Objecting to the fees, Mr. Brody 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). 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 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

Jessica L. Ellis, Esq. SPR22/2478 Page 2 November 16, 2022 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 - 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). Current Appeal In his appeal petition, Mr. Brody states the following: This is a petition for review of the fee estimate provided by the Office of Public Safety and Inspections (OPSI) [the Division] for a) consideration of the fee assessed and the burden it places on the public; b) the financial ability of the requestor; and c) consideration of extenuating circumstances that have contributed to this matter. Fee Waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public

Jessica L. Ellis, Esq. SPR22/2478 Page 3 November 16, 2022 understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. G. L. c. 66, § 10(d)(v). Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). The Division’s September 23rd Fee Estimate In its September 23, 2022 fee estimate, the Division estimates a total cost of $1,081.00, and provides the following information in support of its estimate: [The Division] conducted a preliminary search for responsive records and identified approximately 3,779 pages. ... [A] significant number of these responsive documents could contain potentially privileged materials and materials exempt from disclosure under the Public Records Law and other statutes, including without limitation, G.L. c. 4, § 7(26)(c), CORI (G.L. c. 6 § 167, et al.), and attorney-client privilege. The Division goes on to explain that “it contemplates that each record will require an average of 45 seconds to review and redact or exclude from the production.” The Division further states that it will charge a rate of $25.00 per hour, and notes that “the rate cited above represent[s] the rate for the lowest paid employees capable of performing the tasks associated with fulfilling this request.” Additionally, the Division provides the following: 3,779 pages x 45 seconds/page = 47.24 – first 4 hours of labor = 43.24 hours 43.24 hours x $25.00 = $1,081.00 In light of the Division’s September 23rd response, I find the Division 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). In its September 23rd response, the Division also expresses willingness to work with Mr. Brody to modify the scope of his request. This office encourages Mr. Brody and the Division to communicate directly in order 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

Jessica L. Ellis, Esq. SPR22/2478 Page 4 November 16, 2022 enable the agency to produce the records sought more efficiently and affordably). Conclusion As set forth above, I find the Division has met its burden in responding to Mr. Brody’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. Sincerely, Manza Arthur Supervisor of Records cc: Steven Brody