Wallack, Todd v. Executive Office of Public Safety and Security - Department of State Police (SPR 20150836)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 31, 2015 SPR15/836 Ms. Jaclyn R. Zawada, Esq. Department of State Police Office of the Chief Legal Counsel 470 Worcester Road Framingham, MA 01702 Dear Attorney Zawada: I have received the petition of Todd Wallack of the 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, Mr Wallack requested a copy of"the Department's log/list of public records requests" for all years readily available. This request was the subject of previous appeals with this office. See SPR15/246 Determination ofthe Supervisor of Records (May 14, 2015); SPR15/501 Determination of the Supervisor of Records (August 21, 2015). Background In a December 3, 2015 response, the Department provided a copy of the responsive record with the description column completely redacted, at no cost. The Department explained that segregating all the exempt material from the non-exempt material in the remaining responsive records would be extremely time consuming and costly. Mr. Wallack appealed that response. In a March 10, 2015 letter, the Department provided Mr. Wallack with a fee estimate. Mr. Wallack appealed that estimate. I ordered the Department to provide Mr. Wallack with a revised fee estimate for the provision of records responsive to his request. See SPR15/246 Determination ofthe Supervisor ofRecords (May 14, 2015). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Jaclyn R. Zawada, Esq. SPR15/836 Page Two December 31, 2015 In a letter dated May 27, 2015, the Department confirmed that the fee estimate was based on the hourly rate ($25.00) of the lowest paid employee who is capable of performing the task. However, in my August 21 Determination, I found that the Department had not justified the number of hours to search for and segregate a log which details requests for public records. I ordered the Department to provide Mr. Wallack with a revised fee estimate for the provision of the records responsive to his request. See SPR15/501 Determination ofthe Supervisor of Records (August 21, 2015). In a letter dated October 30, 2015 the Department provided Mr. Wallack with a revised fee estimate clarifying its position regarding the number of hours required for search and segregation. Mr. Wallack appealed this response. The basis of Mr. Wallack's appeal is: (1) the number of hours the Department estimates it would take to "review and redact" the responsive records; and (2) the Department has withheld large portions of the responsive record without justification. The Department's October 30 response; revised fee estimate Fee estimate The Access 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). The Department has explained that the responsive record, which details requests received by the Department, spans six ( 6) years from 2009 through 2014 and contains approximately 4,500 total entries. You indicate the log contains a column calling for a brief description of the request and that certain entries in this column include information such as private information; medical information; criminal offender information; and/or identities of juveniles, witnesses, complainants, informants, and/or victims of rapes and other crimes. In the Department's October 30 letter, you explain that multiple Department employees spent four (4) hours determining what portions of the log could be publically disclosed. The Department did not charge Mr. Wallack for this time. You provided Mr. Wallack with partially redacted log entries produced as a result of this work. Based on the results of this four (4) hour search and segregation effort, you provided Mr. Wallack with a revised fee estimate for the remaining responsive records. You state "the Department estimates the cost of providing the remaining, nonexempt description information in

Ms. Jaclyn R. Zawada, Esq. SPR15/836 Page Three December 31, 2015 its log to be approximately $6,525.00." You explain this fee is based on two hundred sixty five (265) hours of search and segregation time, at a rate of $25.00 per hour, to "identify the portions of the entries in the Department's log which are not exempt from public disclosure ...." Further, you confirm the hourly rate used is that of the lowest paid person capable of performing the task. Lastly, you explain the total fee is actually based on two hundred sixty one (261) hours of search and segregation time because the Department did not charge Mr. Wallack for the four (4) hours of work already performed. It should be noted that this fee is less than the Department's initial fee estimate. See SPR15/246 Determination ofthe Supervisor ofRecords (May 14, 2015). In light of the Department's undertaking four (4) hours of work to more accurately determine the number of hours needed to comply with the request, I find the Department has justified the estimated amount of search and segregation time. As a result, I find the October 30 revised fee estimate to be compliant with the Public Records Law and its Regulations. I will consider this portion of the appeal closed. Redactions In his appeal petition, Mr. Wallack also asserts that the Department has withheld large portions of the responsive record without justification. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town 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(c); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). The records provided to Mr. Wallack with the October 30 letter contained redactions. Although the Department has explained that the responsive log may contain exempt information, it must provide 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. I find the Department has yet to meet its burden to justify the redactions contained in the records provided to Mr. Wallack with the October 30 letter.

Ms. Jaclyn R. Zawada, Esq. SPR15/836 Page Four December 31, 2015 Conclusion Accordingly, whereas the Department has not overcome the presumption that the information redacted in the records provided with the October 30 letter is public, the Department is hereby ordered, within ten (10) days, to provide Mr. Wallack a written explanation, with specificity, how a particular exemption applies to each redaction. 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. 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 pre@sec.state.ma.us. With regard to the remaining records, the Department mus provide Mr. Wallack with the responsive records upon payment of the estimated fee. If the De ment maintains that any portion ofthe responsive records are exempt from disclosure it st provide to a written explanation, with specificity, how a particular exemption a p to each record. cc: Mr. Todd Wallack