Mary Jirmanus Saba v. Department of Public Health (SPR 20231123)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 12, 2023 SPR23/1123 Helen Rush-Lloyd Records Access Officer Department of Public Health 250 Washington Street Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition of Mary Jirmanus Saba appealing the response of the Department of Public Health (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 1, 2023, Ms. Saba requested: [1] Correspondence between [two identified individuals] with anyone in Health and Human Services or the MA DPH regarding masks in healthcare and pre- procedure COVID testing in healthcare during February and March 2023; and [2] Meeting minutes of the Healthcare Associated Infection Technical Advisory Board Meeting, during the month of March 2023. Previous Appeal This request was the subject of a previous appeal. See SPR23/1025 Determination of the Supervisor of Records (May 25, 2023). In my May 25th determination, I closed SPR23/1025 in light of the Executive Office of Health and Human Services forwarding the request to the Department. I understand the Department received Ms. Saba’s request on May 15, 2023. Subsequently, the Department responded on May 26, 2023, providing a fee estimate. Objecting to the fees, Ms. Saba 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 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

Helen Rush-Lloyd SPR23/1123 Page 2 June 12, 2023 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 - 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 her appeal petition, Ms. Saba contends the following: 1) [T]he fee which DPH would like to attach to the request, which is prohibitively high. 2) DPH’s comment that they will redact information related to “policy positions being developed by the agency, which would be exempt from disclosure.” My request is specifically to see discussions related to policy positions regarding masking and infection control in healthcare. This information of internal correspondence between DPH and hospital administrators who have financial interest in removing infection control measures from hospitals should be

Helen Rush-Lloyd SPR23/1123 Page 3 June 12, 2023 available to the public so that we can judge for ourselves whether the Department of Public Health is serving the Public’s Health, Wellbeing, and Civil Rights. 3) Finally, I contest DPH’s response that they have “no responsive records” for the meetings that I have requested a record of. If they have no records of these meetings, they should be compelled to produce a summary of such pertinent decisions which impact the health and wellbeing and civil rights of residents of Massachusetts. 4) DPH and HHS are replying to my request with the maximum time frame possible, thereby delaying my advocacy efforts on behalf of disabled and vulnerable residents of the state. I request an expedited response to this appeal, and to my request. The Department’s May 26th Fee Estimate In its May 26, 2023 response, the Department indicates that it “identified 1160 emails that may be responsive” to the request and provides a total fee estimate of $625. In its response, the Department explains that it will charge an hourly rate of $25.00 and “does not have an employee with such necessary skill who is paid less than $25.00 per hour.” The Department also explains that it will not charge for the first four hours of work. The Department goes on to explain the following in support of its fee estimate: With respect to the 1,160 records identified as potentially responsive, the Department estimates 29 hours of personnel time will be required to segregate, redact, and assemble the records for production. The number of hours has been calculated by estimating an average segregation and redaction rate of 40 documents per hour (1160 records ÷ 40 documents reviewed per hour = 29 hours). The 29 hours will be attributed to segregating and redacting records as required by law. Along with Exemptions (c) and (d) of the Public Records Law, the Department explains that the responsive emails may include “information protected by attorney-client privilege” and “information of a highly personal nature [that] may be subject to G.L. c. 66A, the Massachusetts Fair Information Practices Act (FIPA), and therefore exempt pursuant to G.L. c. 4, § 7, clause 26(a).” In this case, where the Department has explained that it will charge for segregation and redaction required by law, and has explained the amount of time required, and confirmed that the lowest paid individual with the necessary skill is paid more than $25 per hour, 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).

Helen Rush-Lloyd SPR23/1123 Page 4 June 12, 2023 With regard to Ms. Saba’s objections regarding the Department’s claims of exemptions and the attorney-client privilege, please be advised that where the Department has yet to produce the records, I find these matters cannot be addressed at this time, as the contents of these records are unclear. Once records are provided, Ms. Saba may appeal the substantive nature of the Department’s response within ninety calendar days. See 950 C.M.R. 32.08(1). I understand a staff attorney of the Public Records Division discussed this aspect of Ms. Saba’s appeal with her by phone on June 8, 2023. This office encourages Ms. Saba and the Department 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 enable the agency to produce the records sought more efficiently and affordably). Any revision to the request would result in the requirement to issue a revised fee estimate. Conclusion As set forth above, I find the Department has met its burden in responding to Ms. Saba’s request at this time. Accordingly, I will consider this administrative appeal closed. If Ms. Saba is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Mary Jirmanus Saba