David S. Kassel v. Department of Developmental Services (SPR 20230344)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 7, 2023 SPR23/0344 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 response 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 February 8, 2023, Mr. Kassel modified his request to include “a search window to a period of 4 months, from August to November of 2021.” Prior appeal The requested records were the subject of a prior appeal. See SPR23/0128 Determination of the Supervisor of Public Records (February 3, 2023). The Department responded on February 17, 2023. Unsatisfied with the Department’s response, Mr. Kassel petitioned this office and this appeal, SPR23/0344, was opened as a result. This appeal is regarding the fee estimate relating to request number 4. 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. SPR23/0344 Page 2 March 7, 2023 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). 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 February 17th Fee Estimate In its February 17, 2023 fee estimate, the Department stated, “DDS does not have the capacity to conduct searches for the documents responsive to your request. Therefore, DDS requested the Executive Office of Technology Services and Security (‘EOTSS’) staff to conduct a search, using specific search terms, and collect all DDS emails potentially responsive to your request for emails to or from all DDS employees ...” Following the agreed to modification to four months, the Department advised that it will also narrow the list of potential custodians, limiting the search to only those directly involved in the closing of group homes during that window of time. The Department advised, “...the amount of potentially responsive documents has been narrowed to 2399 emails [for a] ... new cost [of] $1499.38.” Current appeal In his appeal, Mr. Kassel asserts, “... my documents request concerns only seven DDS- run group homes that were closed during the period from August through November 2021. [The Department’s] response is vague.” Although the Department has estimated that the process of compiling, reviewing, and preparing responsive documents for production will cost $1,499.38 or approximately 60 hours, it is unclear how the Department requires this many hours to produce the responsive records. It is unclear from the Department’s estimate how many hours are allocated to search, and how many hours are allocated for segregation and redaction of the records. In addition, it is not clear what tasks are involved to prepare responsive records for production. As such, the Department must

William R. Eldridge, Esq. SPR23/0344 Page 3 March 7, 2023 provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). 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