Oliver Rourke v. Department of Mental Health (SPR 20231541)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 19, 2023 SPR23/1541 Misael Garcia Records Access Officer Department of Mental Health 25 Staniford Street Boston, MA 02114 Dear Misael Garcia: I have received the petition of Ollie Rourke, of the Committee for Public Counsel Services, appealing the response of the Department of Mental Health (Department/DMH) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 13, 2023, Mr. Rourke requested the following records: [F]rom January 1, 2012, to the present: 1. All data, lists, ledgers, or records containing or reflecting the number of people evaluated by a DMH court clinician for a commitment pursuant to G. L. c. 123, § 35 (Section 35). 2. All data, lists, ledgers, or records containing or reflecting the number of recommendations to commit pursuant to Section 35 made by the clinician. 3. All data, lists, ledgers, or records containing or reflecting the total number of people committed pursuant to Section 35. The Department responded on June 28, 2023, providing a fee estimate. Objecting to the fees, Mr. Rourke 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). 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

Misael Garcia SPR23/1541 Page 2 July 19, 2023 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). The Department’s June 28th Fee Estimate In its June 28, 2023 fee estimate, the Department indicates a total fee estimate of $330 and states that it “has identified approximately 248 records as potentially responsive to [the] request. DMH personnel must review these records for responsiveness, applicable privileges, and exemptions, and then make necessary redactions, as required by law.” The Department further states that “DMH does not have an employee with such necessary skill who is paid less than $25.00 per hour. Consistent with the Public Records Law, the first four (4) hours of personnel work are free of charge; thereafter an hourly rate of $25.00 will be charged.” The Department explains the following concerning potential redactions required by law: DMH is prohibited from disclosing individually identifying medical information. This information is confidential pursuant to federal and state law. See 42 CFR 431.306(c) and G.L. c. 118E § 49. Further, this information constitutes protected

Misael Garcia SPR23/1541 Page 3 July 19, 2023 health information protected from disclosure pursuant to 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. DMH is further prohibited from disclosing this information because it constitutes personal data protected from disclosure pursuant to G.L. c. 66A, the Massachusetts Fair Information Practices Act (“FIPA”). If DMH disclosed such information, DMH may be liable for damages under G.L. c. 214, § 3B. See also 801 CMR 3.00 (regulating dissemination of personal data under FIPA). . . . Cells containing non-zero Section 35 evaluation and commitment counts under eleven (11) will be redacted pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) de-identification safe harbor, and in accordance with the DMH’s data suppression guidelines, to avoid possible re- identification. (See 45 CFR §164.514(b)). With regard to the amount of time required, the Department states that “DMH has already expended eleven (11) hours working on [the] PRRs, including determining potential custodians, developing search terms, identifying potentially responsive records, and issuing this response.” The Department goes on to explain that it “estimates 6.2 additional 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 (248÷40=6.2). The 6.2 additional hours will be attributed to segregating and redacting records as required by law.” The Department concludes that “at a rate of $25 per hour, the estimated fee for segregating, redacting, and electronically producing these records is $330.00 (17.2 hours – 4 statutory hours= 13.2 hours x $25 = $330.00).” Please note that under the Public Records Law, an agency may assess fees to search for, compile, segregate, redact or reproduce records. See 950 CMR 32.07 (2)(i). The Department is advised that it may not assess a fee for the time it takes to prepare a response in responding to a public records request. Consequently, it is unclear what tasks the Department is referring to as “issuing this response.” The Department must clarify this. Additionally, based on the Department’s fee estimate, it is unclear why the Department required eleven hours to search for and identify the records. The Department must provide further details regarding the tasks involved and what each task entails. 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 fees assessed are consistent with G. L. c. 66, § 10(d). This office encourages Mr. Rourke and the Department to communicate directly 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

Misael Garcia SPR23/1541 Page 4 July 19, 2023 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 Accordingly, the Department is ordered to provide Mr. Rourke with a response to his 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: Ollie Rourke