Mary Jirmanus Saba v. Department of Public Health (SPR 20232433)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 26, 2023 SPR23/2433 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. See 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. In an email to the Department on August 14, 2023, Ms. Saba modified the scope of Part 1 of the request to include “emails from February 1- May 31 between [three individuals]” and a set of 16 Department employees. She also reiterated that she still seeks records responsive to Part 2 of the request. Previous Appeals This request was the subject of previous appeals. See SPR23/1025 Determination of the Supervisor of Records (May 25, 2023); SPR23/1123 Determination of the Supervisor of Records (June 12, 2023) and SPR23/2017 Determination of the Supervisor of Records (September 11, 2023). In my September 11th determination, I encouraged the Department to communicate directly with Ms. Saba in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii). Subsequently, the Department responded on September 25, 2023, referring back to its previous fee estimates, and providing a fee estimate for the modified August 14th request. Unsatisfied with the Department’s response, Ms. Saba further appealed and this case was opened as a result. 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 SPR23/2433 Page 2 October 26, 2023 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). 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). Fee Waivers In her appeal petition, Ms. Saba requests that the responsive records be provided “free of charge.”

Helen Rush-Lloyd SPR23/2433 Page 3 October 26, 2023 G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is 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, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). The Department’s September 25th Response and Fee Estimate In its September 25, 2023 response, the Department refers back to its previous May 26, and August 25, 2023 fee estimates, and provides a fee estimate for the modified August 14th request. In its September 25th response, the Department indicates that it possesses “686 potentially responsive emails” and provides a fee estimate of $328.75 for the modified August 14th request. The Department provides the following information in support of its fee estimate: With respect to the 686 records identified as potentially responsive, the Department estimates approximately 17.15 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 (686 records ÷ 40 documents reviewed per hour = 17.15 hours)…. (Accordingly, at a rate of $25.00 per hour, the total estimated fee for reviewing, redacting, and electronically producing records in response to [Ms. Saba’s] request is $328.75 ((17.15 hrs. – 4 hrs.) x $25 = $328.75).) In its earlier May 26th fee estimate, 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. Additionally, 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

Helen Rush-Lloyd SPR23/2433 Page 4 October 26, 2023 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 Ms. Saba’s modified August 14th request. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). 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