Jose L. Negron v. Executive Office of Public Safety and Security - Department of Correction (SPR 20160599)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 11, 2016 SPR16/599 Mr. Brian J. Kearnan Executive Office of Public Safety and Security Department of Correction 50 Maple Street, Suite 36 Milford, MA 01757 Dear Mr. Kearnan: I have received the petition of Jose Negron appealing the response of Department of Correction (Department) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Negron requested a "list of all purchased food products under the Prison Director of Food Services Fiscal Year 2016 including all religion meals at NCCI Gardner Medium". In a response dated June 23, 2016 the Department explained that there is no document responsive to his request. The response provided a fee estimate to produce copies of the records that contain information the Department believes are responsive to the request. Mr. Negron appealed this response. Fees A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 10(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 black and white single or double-sided photocopy of a public record. See 950 C.M.R. 32.06(1)(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 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 OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Brian J. Kearnan SPR16/599 Page 2 August 11, 2016 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, § 1O (a). The response by the Department assessed a fee of $.10 per page for 1,000 pages of records. The Department is advised that it is not permitted to assess a fee above the $.05 per page amount indicated in the Regulations. No duty to create a record Mr. Negron appealed the unwillingness of the Department to create a "list" responsive to the request. The Department's response stated that no such list exist, further stating it would need to provide copies of "individual invoices of food purchases from various food vendors:" The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time ofthe request. See G. L. c. 4, § 7(26) (defining "custodian" as the public employee with routine access to or control of public records). There is no obligation to create a record in response to a request for public records. See G. L. c. 66, § 10(a); 32 Op. Arty Gen. 157, 165 (May 18, 1977) (custodian is not obliged to create a record in response to a request for information). I find the Department acted properly in its response with respect to records in existence. Order Whereas the Department is not required to create a "list" responsive to Mr. Negron's request, I find the Department did not deny access to records. The Department did, however, err in its calculation of fees for the cost of copies of records. Accordingly, the Department is hereby ordered to provide Mr. Negron with a revised fee estimate for the provision of responsive records that do exist. The response by the Department must be prepared in a manner consistent with this order, the Public Records Law, 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. Supervisor of Records cc: Mr. Jose Negron