Thomas Greve v. Office of the District Attorney - Cape & Island District (SPR 20171037)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 9, 2017 SPR17/1035; SPR17/1037 Tara L. Miltimore, Esq. Assistant District Attorney Office of the District Attorney - Cape & Islands District 3231 Main Street, PO Box 455 Barnstable, MA 02630 Dear Attorney Miltimore: I have received the petition of Thomas Greve appealing the response of the Office of the District Attorney - Cape & Islands District (Office) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). On June 28, 2017 and July 12, 2017, Mr. Greve requested records pertaining to an identified case. Initially, the Office provided responses on July 18, 2017 denying Mr. Greve of responsive records. Objecting to this denial, Mr. Greve petitioned this office. 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, § lOA( d); 950 C.M.R. 32.03(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). 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, § 1O (b )(iv); 950 C.M.R. 32.06(3); see also Dist. 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. 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

Tara L. Miltimore, Esq. SPR17/1035; SPR17/1037 Page2 August 9, 2017 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, § 1 0( 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, § IO(d)(i). Agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § IO(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, § 10 (d )(iv). See G. L. c. 66, § 1 0( d)(ii); 950 C.M.R. 32.06(4 ). Please be advised, an agency RAO shall not charge a fee for the provision of a public record unless the RAO responded to the requester within ten (10) business days under G. L. c. 66, § IO(b). See 950 C.M.R. 32.06(2)(c). Subsequent to the intervention by a member of the Public Records Division staff, I was informed that the Office will provide a more substantial response. With the proviso that the Office will provide a revised response to Mr. Greve without delay, I will now consider this administrative appeal closed. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Greve may appeal the substantive nature of the Office's response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, ~~ Supervisor of Records cc: Thomas Greve