Christian Baillet v. Plymouth County District Attorney's Office (SPR 20160221)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords April8, 2016 SPR16/221 Ms. Gail M. McKenna, Esq. Office of the District Attorney-Plymouth County 32 Belmont Street Brockton, MA 02108 Dear Attorney McKenna: I have received the petition of Christian Baillet appealing the nonresponse of Plymouth County District Attorney's Office (Office) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Attorney Baillet requested a number of records in regards to the hiring policies and procedures, job duties, and internal disciplinary actions of "victim witness advocates." Having received no substantial response, Attorney Baillet petitioned this office. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. Office is advised that all records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. The Office provided an initial response in the form of a phone conversation as referenced in your March 1, 2016 correspondence to this office, but otherwise failed to meet its burden in providing a response to a request for public records. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The ten-day provision is a maximum, rather than a minimum, time frame for complying with a public records request. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. Office is advised that all records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. Attorney Baillet maintains that he has not waived his request for public records. In your March 1 correspondence, you indicated that Attorney Baillet told you that "his agency had no funding to pay for public records requests", and having no further contact with OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Gail M. McKenna, Esq. SPR16/221 Page 2 April 8, 2016 him afterwards, therefore "[h]e was unable to pay, and abandoned it." In his March 22, 2016 petition made to this office, Attorney Baillet reiterated that he has not waived his request, did not recall the discussion, nor was he provided a fee estimate by you, "orally or otherwise". With the exception of the "Plymouth County District Attorney's Office Victim/Witness Advocate Manual", his requests still stand for the remainder of the records requested on both November 10,2015 and on March 14, 2016 (the latter was a resubmission of the same request). 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 ($1 0. 00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee of five cents ($.05) per page for a single or double-sided photocopy or computer printout of a public record. See 950 C.M.R. 32.06(l)(a). 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 ofthe 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). Accordingly, the Office is hereby ordered, within ten (10) days, to review the requests made by Attorney Baillet and provide a written response to him, made in accordance with the Public Records Law, its Access Regulations and this order. If the Office maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Attorney Baillet 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. 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. If there are any fees associated with this response a written, good faith estimate must be provided. 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 ($1 0. 00), custodian of records shall

Ms. Gail M. McKenna, Esq. SPR16/221 Page 3 April 8, 2016 provide written good faith estimate). Once the fees are paid, you must provide the responsive records. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a ecords custodian in person to conduct training workshops on the Public Records Law u request. Please contact my office directly at the telephone number provided in this dete m· at on for further information. cc: Mr. Christian Baillet, Esq.