Sana Fadel v. Department of Children and Families (SPR 20241194)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 3, 2024 SPR24/1194 Steven S. Treat, Esq. Assistant General Counsel Department of Children and Families 600 Washington Street, 6th Floor Boston, MA 02111 Dear Attorney Treat: I have received the petition of Sana Fadel appealing the response of the Department of Children and Families (Department/DCF) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 15, 2024, Ms. Fadel requested various “records from fiscal years 2020, 2021, 2022 and 2023 (separated by year) with information and data on 51A referrals.” On March 29, 2024, the Department responded, providing a fee estimate. Unsatisfied with the Department’s response, Ms. Fadel petitioned this office and this appeal, SPR24/1194, was opened as a result. Fees - Municipalities 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. A municipality 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). Municipalities may not assess a fee for the first (two) 2 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate 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

Steven S. Treat, Esq. SPR24/1194 Page 2 May 3, 2024 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. However, municipalities may charge more than $25 per how if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). 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)(iii); 950 C.M.R. 32.06(4). The Department’s March 29th Response In its March 29, 2024 response, the Department provided a fee estimate of $525.00 and stated, “the first four (4) hours of employee work are free of charge; thereafter an hourly rate of $25.00 will be charged… Accordingly, at a rate of $25 per hour, the total estimated fee for email delivery of responsive records is $525.00” Additionally, the Department breaks down the fee estimate as follows: Task Hours Identify data, synthesize data, create code, add calculations , perform data analytics 23 Review data for accuracy and redact 0.5 Assemble records for production 1.5 Complimentary hours -4.0 TOTAL HOURS 21 Although the Department has estimated that the process of searching the responsive records for production will take 23 hours of employee time, it is uncertain why it would take this many hours to search for the responsive records. The Department must provide additional information regarding the tasks involved in producing these records. Also, based on the Department’s cost estimate, it remains unclear how the Department may charge a fee to “synthesize data, create code, add calculations, [and] perform data analytics” under G. L. c. 66, § 10(d)(iii). Particularly, it is uncertain how these tasks constitute time to search for, compile, segregate, redact, or reproduce records. Accordingly, the Department must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Further, based on the Department’s response, I find the Department must clarify if the redactions are required by law, and state the applicable statutes, if any. Pursuant to the Public Records Law, a fee may 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 must clarify this. I encourage Ms. Fadel and the Department to communicate in order to facilitate producing records efficiently and affordably. Ms. Fadel may wish to narrow the parameters or

Steven S. Treat, Esq. SPR24/1194 Page 3 May 3, 2024 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 Ms. Fadel 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: Sana Fadel