Robert P. McGovern, Jr., Esq. v. Suffolk County Sheriff's Department (SPR 20160891)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 25, 2016 SPR16/891 Russell T. Homsy, Esq. Assistant General Counsel Suffolk County Sheriffs Department 20 Bradston Street Boston, MA 02118 Dear Attorney Homsy: I have received the petition of Robert McGovern, Esq. of The Boston Herald appealing the response of the Suffolk County Sheriffs Department (Department) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. McGovern requested the opportunity to inspect or obtain copies of any emails relating to phone calls made by a specifically-named former inmate from July 1, 2014 through December 17, 2015. Previous response and determinations The requested records were the subject of a previous appeal. See SPR16/057 Determination of the Supervisor of Records (February 12, 2016); Determination of the Supervisor of Records (May 4, 2016). In my February determination, I closed the appeal with the proviso that the Department provide Mr. McGovern with a response. On February 17, the Department provided certain records with a letter. However, on February 25, Mr. McGovern appealed to this office again indicating that he did not receive the entirety of the responsive records. In my May 4 determination, I ordered the Department to provide Mr. McGovern a revised written response detailing records provided and to be provided. I also ordered the Department to cite any public records exemptions for any records that have been withheld. Basis for the current appeal - SPRJ 61891 On August 4, 2016, the Department provided Mr. McGovern a preliminary written estimate of two thousand nine hundred dollars ($2,900.00) for twenty (20) hours at one hundred forty-five dollars ($145.00) for an outside vendor to search for and produce the responsive records. The Department also informed Mr. McGovern that the cost of copies is five ($.05) cents One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Russell T. Homsy, Esq. SPR16/891 Page 2 October 25, 2016 per page. Your letter further states that if the final fee varies from the estimate at the conclusion of the request Mr. McGovern would be entitled to a refund if the cost is less than the estimate, and that he may be assessed an additional amount if it exceeds the estimate. The Department failed to provide McGovern with a response detailing what records were provided and which records the Department has not yet provided. Mr. McGovern informed this office in his petition that while the Department provided records free of charge, the dozens of pages of records he received did not contain responsive information. Mr. McGovern also objects to the estimated fees. 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). 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. Your fee estimate was provided two (2) months after my May 4, 2016 determination ordering the Department to provide a detailed response. The Department is reminded that all records custodians must comply with the timeliness provision in the Public Records Law and Regulations. 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. 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

Russell T. Homsy, Esq. SPR16/891 Page 3 October 25, 2016 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). 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, § 1O (a). I find the Department has failed to meet its statutory and regulatory obligation to provide a detailed fee estimate and to explain how the hourly rate assessed is the rate of the lowest paid employee. Order I find the Department has failed to provide a fee estimate that complies with the Public Records Law and its Regulations. Accordingly, the Department is hereby ordered to provide McGovern with a detailed revised fee estimate to comply with his request, within ten (10) days, prepared 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 i preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. cc: Robert McGovern, Esq.