DDS turns COFAR’s public records request over to a computer, resulting in an initial processing fee estimate of over $22k
The Department of Developmental Services (DDS) has begun using computers and algorithms to locate and process records in response to our public records requests, and that doesn’t appear to have been a good thing for transparency.
In the latest case, I had asked DDS in January for records listing reasons for the closures of seven state-operated group homes during a two-year period from 2021 through this year.
You would think it would not be difficult for DDS to locate and provide a reasonably reviewable number of documents listing those reasons.
But in a response to my records request, a DDS attorney said the Department had “requested information technology (‘IT’) staff” to search for internal emails, and that the computer search had identified 33,541 such emails and attachments “that may be responsive.”
The DDS records attorney then noted that the Public Records Law allows agencies to charge $25 per hour for staff time in compiling and redacting documents in order to comply with privacy and other laws such as HIPAA.
The attorney stated that because it would take an estimated 837 hours to process the 33,500 emails, the fee for providing them to us would be $22,925. And that fee could go higher if the hourly estimate turned out to be low.
DDS supposed to use its “knowledge of the records”
Arguing that DDS could have located a small number of responsive records, I appealed the DDS response on January 23 to Manza Arthur, the state’s public records supervisor, who heads a division in the office of Secretary of the Commonwealth Bill Galvin. The Public Records Division was established to ensure that state agencies comply with the Public Records Law.
Arthur issued an initial “determination” on February 3 that DDS needed to explain more fully how it had calculated its fee. In addition, the supervisor stated that DDS must “must use its knowledge of the records to facilitate providing any responsive records.”
Arthur didn’t elaborate on what is involved in using knowledge in providing records. But to us, it seems to mean that DDS presumably has personnel who have knowledge of the issues involved, and that those individuals should be able to use that knowledge to find and produce a small number of responsive records.
In that case, there wouldn’t be a need to redact and process thousands of documents that may or may not be responsive to our records request.
A Guide to the Massachusetts Public Records Law published by CommonWealth magazine states, in fact, that a state agency’s “records custodian is required to use his or her ‘superior knowledge’ to determine the exact records that are responsive to (a public records) request.”
The use of such knowledge appears to be what was missing from the Department’s response to my records request. DDS appeared to have simply conducted a computer search for the records using search terms. Anyone can feed search terms into a computer. Institutional knowledge is much different.
DDS says it lacks “capacity,” apparently for a records search based on knowledge
In a phone conversation with the DDS records attorney on February 8, I suggested that instead of conducting a computer search for the records I was seeking, DDS should query departmental personnel with that knowledge of the issue and the records. I also offered to narrow my original request for documents to a period of four months between August and November 2021.
But in a February 17 written response to me, the DDS attorney stated that DDS “does not have the capacity to conduct searches for the documents responsive to your request.” Therefore, he said, DDS had once again requested It staff to conduct a computer search.
This time, the number of “potentially responsive documents” was narrowed to 2,399 emails. The attorney said that using an “algorithm for computing costs…,” DDS had calculated a new fee for producing records of $1,499.38.
While this estimated fee was down from DDS’s original fee estimate of $20,925, the revised estimate is still unacceptable to us. The DDS attorney didn’t elaborate on what he meant by lacking “capacity.” But the end result was the same as the first time. The Department was continuing to feed search terms into a computer.
A test for the state’s Public Records Division
As a result, on February 21, I once again appealed to the supervisor of records.
In my second appeal, I stated that using computers and algorithms to respond to public records requests — which DDS has now done on several occasions — invariably results in a large number of “potentially responsive” documents, which may or may not be truly responsive. Such computer searches also result in inordinately large processing fees for producing the records.
As noted, my narrowed records request concerned seven DDS-run group homes that were closed during the period from August through November 2021.
Does DDS lack such superior knowledge of records concerning those seven homes? Are there no employees within the Department who have an understanding of the reason or reasons that the homes, which the Department managed, were closed in that short period of time?
Is that what the Department means by lacking capacity? If there are no such knowledgeable employees in DDS, the Department should state that to be the case.
In my latest appeal, I asked the public records supervisor to order DDS to more fully explain what it means in saying the Department lacks the capacity to conduct anything other than a computer search for responsive records, and specifically why the Department cannot use its superior knowledge in searching for the requested records.
In our view, this is a potentially important test for the state’s Public Records Division.
Will the public records supervisor require DDS to query its employees about these records, which is something DDS apprently doesn’t want to do? Or will the supervisor find that doing a computer search is sufficient to constitute a use of institutional knowledge?
In that latter case, it would seem that DDS and other agencies would have the green light to turn every public records request entirely over to computer searches.
It’s certainly possible that the supervisor will come up with a different solution to the problem. We expect a determination from the supervisor next week.
COFAR blog 
Wow. Unbelievable. I admire your perseverance greatly. Keep going!
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I would like to know exactly what search terms they used. It seems like it should have been the addresses of the seven state-operated group homes and the words “closure” and “closed.” Then if you want to narrow it further, it should be only emails sent and received from the commissioner and the assistant commissioner. It could be narrowed further by restricting the date. What’s really clear as a bell is that the DDS does not want COFAR to have these records. Since they are screaming at you (with those astronomical prices) not to look there, that’s exactly the right place to look. The person writing the database query probably does not know anything about DDS services & the DDS uses this to their advantage.
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Good points, Irene. I still don’t see why a computer search is needed, though. There are DDS personnel who have knowledge of these records.
Nevertheless, a computer search that is restricted to emails from the commissioner and assistant commissioner might be an option if we lose our appeal. We have already narrowed the time frame. However, I wonder if restricting the emails to those two people might still result in hundreds if not thousands of emails.
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Before I retired, I did a lot of database querying and presenting data in spreadsheets & I don’t think that things have changed all that much since I left the workforce. The DDS probably does all the records requests via a
text query rather than relying on someone’s memory. I would do the same thing to find records. If the person who puts in the ticket (the request) to write the query doesn’t know what search terms to use, that might result in too many records being pulled. Also, if the person who writes the query does not understand how to use the logic correctly, that might also result in too many records being pulled. Since the DDS doesn’t want COFAR to see the records anyway, nobody has the incentive to do this correctly. I doubt if they used the street names for seven group homes and the word “closure.” If they only pulled the records for those emails coming from the commissioner and assistant commissioner, I doubt that it would result in thousands of records, but they have to do it correctly. Pull records that equal “Ryder” and “Example” (St.) and “closure” and “Ryder” and “2nd Example” and “Closure,” etc. I’ve seen people who don’t know how to query correctly use “Example” or “closure” in a problem like this. Using an “and” versus an “or” can make a huge difference in the accuracy of the query. I would love to see the exact query they used. It’s probably really bad.
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Thanks for your diligence in pursuit of the reasons private group homes were terminated by DDS.
I wonder how DDS figures out their internal budget for the hours attorneys and other staff spend in stalling and obstructing public right to access information, and the cost to undermining their “priceless” relationships with consumers and their advocates?
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In reality, someone could walk over to someone’s desk and say, where are the reports on this. And you’d have them in a few minutes. This story is almost comical.
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It seems to me This is double dipping for staff who are hired by tax payers with a wage telling you more money would needed.Who oversees these people to be sure they are dieting their jobs.Further more we as family members need to protect our family members who are being provided services with tax dollars after all if it were not for our family members needing services because they are disabled not one of these people would have jobs.
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