Wallack, Todd v. Executive Office of Public Safety and Security - Department of State Police (SPR 20150431)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords July 20, 2015 SPRlS/431 Mr. Glenn M. Rooney, Esq. Department of State Police Office of the Chief Legal Counsel 4 70 Worcester Road Framingham, MA 01702 Dear Attorney Rooney: I have received the petition of Todd Wallack ofthe Boston Globe appealing the response of the Department of State Police (Department) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, in a request dated March 16, 2015 Mr Wallack requested "an electronic copy of all the daily police logs the [Department] has created for all barracks and years readily available in its current computer system." In a response dated May 4, 2015 the Department provided Mr. Wallack with a fee estimate for the provision of records responsive to his request. Thereupon, Mr. Wallack filed his petition challenging the fee estimate. Timeliness of response It is important to note that the Department's response was not made in compliance with the timeliness requirements of the Public Records Law and its Access Regulations. Your response is dated May 4, 2015, forty-nine days after Mr. Wallack's request. G. L. c. 4, § 7 (26); 950 C.M.R. 32 et seq. A record custodian must comply with a public records request as soon as is practicable, without unreasonable delay, and always within ten (1 0) calendar days. G. L. c. 66, § 1O (a); 950 C.M.R. 32.05(2). The Department is advised that all responses to requests for public records must be made in compliance with the timeliness requirement of the Access Regulations. Public access to daily police logs Much of Mr. Wallack's petition, as well as the Departments explanation, regarding the fee estimate revolve around the application of the Massachusetts General Laws section regarding public access to daily logs produced by police departments. See G. L. c. 41 §98F. This chapter OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Glenn M. Rooney, Esq. SPR15/431 Page Two July 20, 2015 is found under Title VII Cities, Towns and Districts. Chapter 41 is titled Officers and Employees of Cities Towns and Districts. District is defined in this chapter as follows: [t]he word "district", as used in this chapter, shall mean a fire, water, sewer, water pollution abatement, refuse disposal, light, or improvement district, or any other district, howsoever named, formed for the purpose of carrying out any of the aforementioned functions, whether established under general law or special act. G. L. c. 41, § 1A Section 98F of Chapter 41, titled Daily Logs; public records, states in pertinent part: Each police department and each college or university to which officers have been appointed pursuant to the provisions of section sixty-three of chapter twenty-two C [appointment of special state police officers to colleges, universities, other educational institutions and Hospitals] shall make, keep and maintain a daily log, written in a form that can be easily understood, recording, in chronological order, all responses to valid complaints received, crimes reported, the names, addresses of persons arrested and the charges against such persons arrested. All entries in said daily logs shall, unless otherwise provided in law, be public records available without charge to the public during regular business hours and at all other reasonable times. I find that Section 98F of Chapter 41 applies to city and town police departments and colleges or universities to which officers have been appointed pursuant to G. L. c. 22C §63. The Department of State Police does not fall within the list of entities listed in Section 98F. Accordingly, for purposes of fees imposed for access to public records, this order will address whether the Department's fee estimate is compliant with the Public Records Law and its Access Regulations. Fees A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee of twenty cents ($.20) per page for a photocopy of a public record and fifty cents ($.50) per page for a computer print out of a public record. See 950 C.M.R. 32.06(1)(a).

Mr. Glenn M. Rooney, Esq. SPR15/431 Page Three July 20, 2015 In addition to the copying fee, the 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. The search and segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § 10(a). In the Department's May 4 response you explained that the Department consists of approximately thirty-eight (3 8) barracks, each of which produce what they refer to as a Daily Public Log, on a daily basis. Your response further explained that the average Daily Public Log consists of approximately four (4) pages. Consequently, the Daily Public Log for one day would consist of over one-hundred-fifty ( 150) pages. You further explained that the Department electronically maintains Daily Public logs dating back to 2006. The Department estimates the entirety of the records responsive to this request would be in excess of 450,000 pages. The Department's estimate for conducting a search for the responsive records is based upon the following: (1) an employee of the Department, paid approximately $25.00 an hour, will need approximately 75.0 hours to search for, locate and print or download the more than (3000) Daily Public Logs that are requested: and (1) an employee ofthe Department, paid approximately $30.00 an hour, will need approximately 625.0 hours to review approximately 450,000 pages to review the responsive materials to ensure that no exempt information is disclosed. It is unclear from the May 4 letter whether the Department's fee estimate is based on the hourly rate of the lowest paid employee who is capable of performing the tasks of search and segregation. Accordingly, the Department is hereby ordered, within ten (10) days ofthis order, to provide Mr. Wallack with a revised fee estimate, prepared in a manner consistent with the Public Records Law, its Regulations and this order. This fee estimate must include detail on the hourly rate of the lowest paid employee who is capable of performing the tasks of search and segregation of the responsive records. If the Department maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days provide to Mr. Wallack a written explanation, with specificity, how a particular exemption applies to each record. 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.

Mr. Glenn M. Rooney, Esq. SPR15/431 Page Four July 20, 2015 A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at ~====~= cc: Mr. Todd Wallack