Capozzi, Derek v. Essex District Attorney's Office (SPR 20140039)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 13, 2014 SPR14/039 Mr. Derek A. Capozzi United States Penitentiary ADMAX Box 8500 Florence, CO 81226 Dear Mr. Capozzi: I have received your petition appealing the response of the Essex District Attorney's Office (DAO) to your request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, you appealed the fee estimate provided by the DAO in response to your request for records. In a February 14, 2014letter to this office you questioned, with respect to fees for public records in Massachusetts: Is it permissible for a records custodian to assess fees prior to determining whether responsive records exist? The Massachusetts Public Records Access Regulations (Regulations) provide that in cases where search or segregation time is necessary a custodian of records may charge a pro rated fee based on the hourly rate of the lowest paid employee who is capable of performing the task. 950 C.M.R. 32.06(1)(c). The Regulations define "search time" as the time needed to locate, pull from the file, copy and refile public records, and "segregation time" as the time used to redact data that is exempt from non-exempt material. 950 C.M.R. 32.03. May a records custodian require advance payment offeesfor public records? Under the Massachusetts Public Records Law and its Regulations, a records custodian may require prepayment of a fee prior to complying with a public records request. G. L. c. 66, § 10 ( a). If a search for records yields no results, the custodian would still be entitled to fees for that search. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Derek A. Capozzi SPR14/039 Page Two March 13, 2014 Does the financial status of the requester determine whether a records custodian may assess a fee? Records custodians are encouraged, but not required, to waive fees where disclosure is in the public interest. 950 C.M.R. 32.06(5). The personal status of a requester does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, unlike requests in court a records custodian is not required to waive fees if a requester is unable to pay. Conclusion Whereas a records custodian is entitled to assess fees for the provision of public records, and further whereas the estimate provided by the DAO is reasonable, your administrative appeal is closed. Shawn A. Williams Supervisor of Records cc: Essex District Attorney