Alex Rankins v. Office of the District Attorney - Northwestern District (SPR 20170527)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 27, 2017 SPR17/527 Cynthia Von Flatern, Esq. Assistant District Attorney / Records Access Officer Northwestern District Attorney's Office One Gleason Plaza Northampton, MA 01060 Dear Attorney Von Flatern: I have received your petition on behalf of the Northwestern District Attorney's Office (DAO) requesting to charge for time spent segregating or redacting public records in responding to a request made by Alex Rankins. G. L. c. 66, § 10(d )(iv). As required by law, the DAO provided a copy of this petition to the requester. G. L. c. 66, § 10(d)(iv)(2). Mr. Rankins requested various police records concerning a specifically identified court case. Status of the requester Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Rankins purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1 )(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). Further, you state that "[a]ll of the documents the defendant seeks were previously provided to the defendant's counsel in discovery." As such, Mr. Rankins may wish to consider another means of seeking to obtain any existing responsive records. 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

Cynthia Von Flatern, Esq. SPRl 7/527 Page 2 April 27, 2017 Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from an agency to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the agency to comply with the request. G. L. c. 66, § 10(d )(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d )(iv). This office has not received any documentation relative to the financial inability of the requestor to pay or any relevant extenuating circumstances. The statute sets out a two-prong test for determining whether the Supervisor may approve an agency's petition to allow the agency to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § lO(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the agency to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. C. 66, § 10(d )(i). Agencies may not assess a fee for the first four hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d )(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § lO(d)(ii); 950 CMR 32.06(4).

Cynthia Von Flat ern, Esq. SPRl 7/527 Page 3 April 27, 2017 Current petition In its petition dated April 19, 2017, the DAO seeks permission to charge for time spent searching for and segregating records responsive to Mr. Rankins' request. The DAO is seeking to charge $150, comprised often hours of work, with the first four hours free, at $25 an hour. You indicate there will be an additional $20 for copying costs. The DAO explains "[t]he documents the defendant seeks are contained within the NWDAO's voluminous file of this case. The file encompasses multiple bankers' boxes in long term storage." You indicate " [a] great deal of searching and segregation will be necessary to identify the documents the defendant seeks." You explain you are the only person in this office that can perform this task. In subsequent correspondence dated April 26, 201 7, you further explain that with respect to the need for segregation and redaction "[t]he privacy exemption, G.L. c. 4, §7(26)(c), will apply to the file as personal identifying information will need to be redacted. The investigatory exemption, G.L. c. 4, §7(26) (f), will apply to protect civilian witness statements from release. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976)." You indicate that with respect to the estimated amount of time, "[c]reating a log of what the file contains and what will and will not be provided pursuant to statute in itself will take approximately three hours" and "seven hours will be spent going through each document." In an email dated April 27, 2017 you "estimate that the file contains at least one thousand documents" and "[t]aking one minute per page, reading and reviewing 1000 pages of documents will take 14 hours." You indicate that "[a]bove and beyond that is the time necessary to redact information that needs to be redacted under the privacy or investigative exemptions, G.L. c. 4, sec. 7(26)(c),(f). I believe that ten hours of time is a very conservative estimate." Given the nature of the requested records and the explanation in its petition as well as its subsequent correspondence, the DAO has met its burden to explain how the request could not prudently be completed without redaction or segregation under applicable statutes. See G. L. c. 66, § IO(d)(iv). Therefore, the DAO may assess a fee for the time spent to segregate and redact these requested records. Further, in light of the volume ofrecords and content of the records, the DAO has met its burden to explain why ten hours of time to segregate and redact is reasonable. See G. L. c. 66, § lO(d)(iv) (requiring the amount of the fee must be reasonable). Conclusion Accordingly, the DAO's petition to charge for time spent segregating and redacting the requested records is granted. See G. L. c. 66, § IO(d)(iv). Please note the requester has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G.L. c. 66, § 1O A.

Cynthia Von Flatern, Esq. SPR17/527 Page 4 April 27, 2017 Sincerely, Rebecca S. Murray Supervisor of Records cc: Alex Rankins