Andrew Quemere v. Executive Office of Public Safety and Security - Department of State Police (SPR 20160937)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of Records December 5, 2016 SPR16/937 Sean W. Farrell, Esq. Department of State Police Office of the Chief Legal Counsel 470 Worcester Road Framingham, MA 01702 Dear Attorney Farrell: I have received the petition of Andrew Quemere appealing the response of the Department of State Police (Department) to a September 29,2016 request for public records. G. L. c. 66 § 10(b); see also 950 C.M,R. 32.08(2). Specifically, Mr. Quemere requested a copy of three categories of records regarding policies and procedures. In an October 11, 2016 response, the Department provided some records, including a fee estimate for others. Mr. Quemere appealed. See also SPR16/937 Determination ofthe Supervisor of Records (November 1, 2016). Current appeal Fee 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 ($10.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the current Regulations, a custodian of records may assess a maximum fee of five cents ($.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 One Ashburton Place, Room 1719, Boston, Massachusetts 02108 (617) 727-2832o Fax: (617) 727-5914 o sec.state.ma.us/pre pre@sec.state.ma.us o

Sean W. Farrell, Esq. SPR16/937 Page 2 December 5, 2016 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). In the Department's October 11 response it explains that there are approximately 572 pages of records that will need to be reviewed and that it will take approximately 28.6 hours, at $25.00 per hour, for an employee of the Department to conduct this review. It is further explained that "the Department will waive the costs associated with the first four (4) hours of agency work required for this search." The quoted time frame of28.6 hours is further broken down to estimate that it will take approximately three (3) minutes to review each page. In Mr. Quemere's current appeal he indicates the Department did not expressly explain how much time would be spent searching for responsive records and how much time would be spent segregating and conducting any necessary redaction on responsive records. In a November 30, 2016 telephone conversation with a member of my staff, you explained that the Department has no way of differentiating between the amount of time taken for search and the amount of time taken for segregation. The Department conducts the search and segregation at the same time, as records are gathered they will be reviewed, redacted, and withheld if necessary. I find that the Department has met its burden of justifying the fee estimate by explaining why it is necessary to spend the estimated amount of time at $25.00 per hour to comply with the request. Therefore, I find the Department provided a good faith fee estimate for provision of the requested records. Unclear if Department's response addresses all responsive "audits" In its October 11 response, the Department indicates it is "interpreting your request to mean inspections conducted by the Department's Stafflnspections Section since January 1, 2012." In his appeal petition Mr. Quemere indicates it is unclear the response addresses "all audits." Mr. Quemere explains he "would like the Department to provide all audits during this time frame, regardless of who conducted them." I find the Department must clarify whether the October 11 response addresses all responsive records. See G. L. c. 4, § 7(26) (the duty to comply with requests for information extends to those records that exist and are in the custody of the custodian of records at the time of the request). Conclusion Accordingly, the Department is hereby ordered to provide Mr. Quemere with a 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

Sean W. Farrell, Esq. SPR16/937 Page 3 December 5, 2016 cc: Andrew Quemere