David S. Kassel v. Department of Developmental Services (SPR 20230128)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 3, 2022 SPR23/0128 William R. Eldridge, Esq. Assistant General Counsel Executive Office of Health & Human Services Department of Developmental Services 1000 Washington Street Boston, MA 02118 Dear Attorney Eldridge: I have received the petition of David S. Kassel appealing the fee estimate of the Department of Developmental Services (Department/DDS) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On January 3, 2023, Mr. Kassel requested the following records: 1. The census at the Wrentham Developmental Center and the census at the Hogan Regional Center each year from Fiscal Year 2019 to the present. 2. Projections and/or plans concerning the closure of the Wrentham Developmental Center and/or the Hogan Regional Center 3. The census in state-operated group homes each year from Fiscal Year 2019 to the present. 4. The number of DDS state-operated group homes that have been closed since August 2021, and the number of homes that have subsequently reopened. 5. The current total number of state-operated group homes. 6. The reasons that any group homes referred to above were closed On January 18, 2023, the Department provided a fee estimate. Unsatisfied with the Department’s response, Mr. Kassel petitioned this office and this appeal, SPR23/0128, 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 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

William R. Eldridge, Esq. SPR23/01287 Page 2 February 3, 2023 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, 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 January 18th Fee Estimate On January 18, 2023, the Department provided responses to items 1-5. For item 6, the Department estimated at fee of $20,925.00 and stated as follows, “DDS requested IT staff conduct a search and collection of various DDS email accounts to find documents potentially responsive to your request. The initial search and collection identified approximately 33,541 emails and attachments that may be responsive …” The Department advised, “DDS estimates that, for the initial search query, approximately 837 hours of personnel time will be required for reviewing and redacting the estimated documents (33,500 ÷ 40 documents per hour = 837 hours). Accordingly, at a rate of $25 per hour, the estimated fee for reviewing and redacting these records is $20,925 (837 hrs x $25/hr = $20,925).” The Department further stated, “[a]gencies may charge an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the requisite skill needed to search for, compile, segregate, redact, or reproduce a record requested, but the fee shall not be more than $25 per hour. See M.G.L. c. 66, § 10(d)(ii). DDS does not have an employee with such necessary skill who is paid less than $25 per hour. Consistent with the PRL, the first four (4) hours of personnel work are free of charge; thereafter, an hourly rate of $25 will be charged. M.G.L. c. 66, § 10(d); 950 CMR 32.07(2).” Although the Department has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 837 hours, it is unclear how the Department requires this many hours to produce responsive records. It is not clear from the Department’s estimate how many hours are allocated for compiling, segregating or redacting the records. In support of redacting requested records, the Department cited Exemptions (a), (c) and (d) of the Public Records Law and attorney-client privilege. It is uncertain whether the Department is charging for an exemption that is 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

William R. Eldridge, Esq. SPR23/01287 Page 3 February 3, 2023 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)). The Department must clarify. In addition, it is not clear what tasks are involved to prepare responsive records for production. As such, the Department must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fee assessed in its January 18th estimate is consistent with G. L. c. 66, § 10(d). I encourage Mr. Kassel and the Department to communicate in order to facilitate producing records efficiently and affordably. Mr. Kassel may wish to 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). Conclusion Accordingly, the Department is ordered to provide Mr. Kassel 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, Manza Arthur Supervisor of Records cc: David S. Kassel