Maya Shaffer v. Office of the District Attorney - Berkshire District (SPR 20160780)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 13, 2016 SPR16/780 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 (DAO) to a request for public records. G. L. c. 66 § lO(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. Previous appeal This request was the subject of a previous appeal. See SPRl 6/780 Determination of the Supervisor of Records (June 10, 2016). In my June 10 determination, I found the DAO failed to properly respond to the request and ordered it to provide Ms. Shaffer with a detailed response to the request, provided in a manner consistent with the order, the Public Records Law and its Access Regulations (Regulations). The DAO provided a supplemental response in a letter dated June 29, 2016. Ms. Shaffer appealed this response and this appeal (SPRl 6/780) was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lO(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). 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. SPR16/780 Page2 October 13, 2016 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, § lO(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. 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 District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(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). Once fees are paid, a records custodian 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 records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. The DAO's June 29 Response The DAO provided Ms. Shaffer with a written response on June 29 stating that it "has initially identified several thousand case files that might contain information relevant to your request." You further explain that these records "and possibly additional files, must be located and hand-searched. Once a more specific determination is made identifying the number of files to be located and searched, and the staff time necessary to complete this task, the [DAO] will provide you with a detailed estimate of the costs incurred to fulfill your request." Fees A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § lO(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).

Mr. Joseph A. Pieropan, Esq. SPR16/780 Page 3 October 13, 2016 The Regulations provide that in cases where search or segregation time is necessary a custodian ofrecords 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 re-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, § lO(a). The DAO failed to provide a proper written, good faith estimate The DAO may charge for searching for records, including the time necessary to copy and re-file paper records; however the fee must be reasonable and in compliance with the Regulations. If the DAO 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 DAO is assessing for her request. The DAO has yet to provide a detailed written fee estimate that includes the amount of time for the search and the lowest paid hourly rate of the individual who will conduct the search and/or segregation. Accordingly, I find that the DAO has failed to provide a proper written, good faith estimate to support assessing a fee to provide responsive records. I understand an attorney on my staff contacted you about this matter. You indicated the DAO would provide a supplemental response to Ms. Shaffer regarding this matter. Order Accordingly, the DAO is hereby ordered provide Ms. Shaffer with a detailed response to the request without delay, 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 sec.state.ma.us. cc: Ms. Maya Shaffer