John Hilliard v. Board of Registration in Medicine (SPR 20232248)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 5, 2023 SPR23/2248 Tara Douglas, Esq. Assistant General Counsel Board of Registration in Medicine 200 Harvard Mill Square, Suite 330 Wakefield, MA 01880 Dear Attorney Douglas: I have received the petition of John Hilliard, of the Boston Globe, appealing the response of the Board of Registration in Medicine (Board/BORIM) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 6, 2023, Mr. Hilliard requested, “[a]ny discipline records for [an identified individual] ... [including] any complaints [and] ... any letters of resignation ...” The Board provided a response on September 20, 2023, including a fee estimate. Unsatisfied with the Board’s response, Mr. Hilliard petitioned this office and this appeal, SPR23/2248, 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 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 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

Tara Douglas, Esq. SPR23/2248 Page 2 October 5, 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). See G. L. c. 66, §10(d)(ii); 950 C.M.R. 32.06(4). The Board’s September 20th Fee Estimate In its September 20, 2023 fee estimate, the Board provided a fee estimate of $125.00 and stated, “...at a rate of $25 per hour, the estimated fee for searching for, compiling, segregating, and redacting records responsive to your request is $125.00 (9.00 hours – 4 hours = 5 hours; 5 x $25 = $125.00).” The Board further stated, “BORIM may charge 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. G.L. c. 66, § 10(d)(ii). BORIM does not have employees with such necessary skills who are paid less than $25.00 per hour. Pursuant to 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. G.L. c. 66, § 10(d); 950 CMR 32.07(2). BORIM already expended one (1) hour of employee time on this request.” The Board also advised, “BORIM estimates 9 hours of personnel time will be required to segregate and redact the email records for production. The 9 hours will be attributed to segregating and redacting records as required by law. The number of hours has been calculated by estimating an average review and redaction rate of 40 documents per hour applied to the estimated 360 pages records identified (360÷40=9). BORIM reserves its right to assess supplemental fees as warranted.” Although the Board explained that redactions are necessary, it is unclear whether the Board is charging for exemptions that are 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 segregation or redaction is required by law for Exemption (a) or attorney client privilege or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv)). As such, the Board must provide further details regarding its fee estimate. If the redactions are required by law under Exemption (a), the Board must identify the specific statutes. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Waiver of fees In his petition, Mr. Hilliard contends he is entitled to a waiver of fees because “[d]isclosure of these requested records are in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor.” Mr. Hilliard is advised that while a record custodian may waive applicable fees, under the criteria in 950 C.M.R. 32.07(2)(k)(l-3), the Supervisor has no authority to order that a record custodian do so.

Tara Douglas, Esq. SPR23/2248 Page 3 October 5, 2023 For the reasons discussed above, I find the Board must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Board is ordered to provide Mr. Hilliard with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: John Hilliard