Maya Shaffer v. Office of the District Attorney - Berkshire District (SPR 20160351)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords June 10,2016 SPR16/351 Mr. Joseph A. Pieropan, Esq. Assistant District Attorney Office of the District Attorney - Berkshire County 7 North Street, P.O. Box 1969 Pittsfield, MA 01202 Dear Attorney Pieropan: I have received the petition of Maya Shaffer of The Bay State Examiner appealing the response of the Office of the District Attorney-Berkshire County (District Attorney) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Shaffer requested an electronic copy of five specific categories of records related to the Pittsfield Police Department. April 27, 2016 Response The District Attorney provided Ms. Shaffer with a written response on April27, 2016 stating that in order to produce a response for the request, staff members will perform a hand search of the office's files. The District Attorney posits that the cost of this search is expected to exceed five hundred ($500.00) dollars. Ms. Shaffer appealed this response. District Attorney failed to provide a proper written, good faith estimate 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). Fees for search and segregation time for public records Your April 27 response indicates that the District Attorney is charging for search time totaling five hundred dollars ($500.00); however the District Attorney did not detail the amount OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Mr. Joseph A. Pieropan, Esq. SPR16/351 Page2 June 10, 2016 of time for the search and the lowest paid hourly rate of the individual who will conduct the search. Furthermore, the District Attorney has not stated whether there are records that are responsive to Ms. Shaffer's requests. 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 andre-file 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 costs for search and/or segregation must reflect the actual cost of complying with a particular request. G. L. c. 66, § 1O (a). The District Attorney may charge for searching for records, including the time necessary to copy andre-file paper records; however the fee must be reasonable and in compliance with the Regulations. I find that the District Attorney has failed to provide a proper written, good faith estimate to support the $500.00 fee. If the District Attorney is charging for any segregation time and physical copies or providing records on electronic media storage, Ms. Shaffer must be advised of all fees that the District Attorney is assessing for her request. The District Attorney has also failed to indicate whether the office actually has any of the records responsive to the request, therefore I advise a quick search before sending Ms. Shaffer a detailed, written estimate. Order I find the District Attorney has failed to respond to a request for public records. Accordingly, the District Attorney is hereby ordered without delay to provide Ms. Shaffer with a detailed response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. 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. cc: Ms. Maya Shaffer