John E. Zwicker v. Department of Correction - Program Services Division (SPR 20171558)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 15, 2017 SPR17/1558 Ja ileen A. Hopkins Director of Program Services Department of Corrections - Program Services Division 50 Maple Street, Suite 2 Milford, MA 01757 Dear Ms. Hopkins: I have received the petition of John Zwicker appealing the response of the Department of Corrections (DOC) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Zwicker requested copies of documents related to "Wiccan request to the Religious Services Review Committee (RSRC)." Ms. Hopkins, Director of Program Services responded to his request, requesting more time to respond and providing a fee estimate. Response to requests for records; requests for more time If the magnitude or difficulty of the request, or of multiple requests from the same requestor, unduly burdens the other responsibilities of the agency such that the agency is unable to permit inspection or furnish a copy of a requested record within the established timeframe, the agency shall inform the requestor in writing not later than 10 business days after the initial receipt of the request for public records. G. L. c. 66, § lO(b); see G. L. c. 66, § lO(a) (a records access officer shall permit inspection or furnish a copy of any public record not later than 10 business days following receipt of the request). Included in this written response, an agency shall: (v) identify any public records, categories of records, or portions ofrecords that the agency or municipality intends to produce, and provide a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time to produce the public records sought; (vi) identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt 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

Jaileen A. Hopkins SPRI 7/1558 Page2 November 15, 2017 of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein; (viii) include an itemized, good faith estimate of any fees that may be charged to produce the records. G. L. C. 66, § IO(b ). If the magnitude or difficulty of a request, or the receipt of multiple requests from the same requestor, unduly burdens the other responsibilities of the agency such that an agency or municipality is unable to complete the request within the time provided in clause (v i) of subsection (b ), a records access officer may petition the supervisor of records for an extension of the time for the agency to furnish copies of the requested record, or any portion of the requested record, that the agency or municipality has within its possession, custody or control and intends to furnish. G. L. c. 66, § IO(c). The DOC 's September 15th response The DOC's response indicates in part that "[d]ue to the magnitude and complexity of your request, we will need additional time to process this production. Alternatively, if you are willing to narrow your public records request, the time to process will decrease." Mr. Zwicker's appeal indicates the DOC has not complied with various requirements under the Public Records Law and Regulations. Specifically, Mr. Zwicker asserts the DOC "has failed to do the following," "identify any PR or portion thereof the RAO intends to provide, (MGLc 66§ IO(b )(v))," "a good faith estimate of any cost of providing the records, (MGLc 66§ lO(b)(viii), 950 CMR 32.07(2)(b))," "a reasonable time frame to respond, (MGLc 66§ IO(b)(vi), 950 CMR 32.07(2)(b))," "a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the RAO Ms Hopkins, requiring the additional time to produce the PR sought, (MGL.c 66§ IO(b)(v),(c))," "a petition to the Supervisor of Records requesting a time extension to produce the PR sought, (MGLc 66§ lO(c), 950 CMR 32.06(4)(a))," and "mail by first class mail, (MGLc 66§ IO(b))." Based on the DOC's September 15th response it is unclear what responsive records it possesses. Additionally, the DOC has not identified a reasonable timeframe to respond or provided a detailed statement explaining why additional time is required. Mr. Zwicker is advised that the charging of fees is optional; therefore, non-enclosure of an estimate will not deem a response improper. Additionally, a petition to the Supervisor of Records is required only if an agency requires beyond 15 business days to respond to the request. G. L. c. 66, § IO(c).

Jaileen A. Hopkins SPRl 7/1558 Page 3 November 15, 2017 The DOC 's September 2gth response The DOC's response indicates "we have determined a charge of $877.16 is necessary to process this production. This amount includes: (i) $10.00 for 200 black and white copies and (ii) $867.16 for employee time, excluding the first four hours ... If you would like us to proceed with this production, please remit a payment of $877 .16 to the Massachusetts Department of Correction, 50 Maple Street, Milford, MA, 01757. Once we have received payment, we will complete the steps necessary to process this production." Mr. Zwicker's appeal indicates the DOC has not complied with various requirements under the Public Records Law and Regulations. Specifically, Mr. Zwicker asserts the DOC "has failed to do the following," "a timely response, (MGLc 66§ lO(a), 950 CMR 32.06(2)(a), .07(2)(b)," "identify any PR or portion thereof the RAO intends to provide, (MGLc 66§ IO(b)(v))," "a reasonable time frame to respond, (MGLc 66§ lO(b)(vi), 950 CMR 32.07(2)(b))," "a petition to the Supervisor of Records requesting a time extension to produce the PR sought, (MGLc 66§ IO(c), 950 CMR 32.06(4)(a))," "mail by first class mail, (MGLc 66§ lO(b))," and "the hourly rate and number of hours required for each portion of the task, (950 CMR 32.07(2)(i))." The September 29th response is timely as it was provided with 15 business days following the initial receipt of the request for public records, which the response indicates was September 11, 2017. Despite the DOC's September 29th supplemental response, it remains unclear what responsive records it possesses. The DOC must clarify what responsive records are in its custody, possession or control and intends to produce upon receipt of payment of a reasonable fee. See G. L. c. 66, § lO(a-b). 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. Id. The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents 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, § 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.

Jaileen A. Hopkins SPRl 7/1558 Page4 November 15, 2017 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). An agency must suggest a reasonable modification of the scope of the request or offer to assist the requester to modify the scope of the request if doing so would enable the agency to produce records sought more affordably. 950 C.M.R. 32.06(2)(g)(emphasis added). Once payment is received, responsive records must be provided to the requester without unreasonable delay. G. L. c. 66, § 10(a ). Fees for employee time The Regulations provide that in cases where necessary to reproduce the requested records a records access officer may charge a fee to search for, compile, segregate, redact or reproduce a record requested based on the hourly rate of the lowest paid employee who is capable of performing the task. G. L. c. 66, § lO(d); see also 950 C.M.R. 32.07(2). Additionally, the reasonable fee for reproduction shall not exceed the actual cost of reproducing the record. Id. An agency may not charge for segregation and redaction unless required by law or a petition has been filed and approved by the Supervisor of Records. G. L. c. 66, § lO(d); see also 950 C.M.R. 32.06(4). The DOC's estimate includes a charge of "$867.16 for employee time, excluding the first four hours." Based on the DOC's response, it is unclear what type of employee work the fee is being assessed for, how many hours of work the DOC is charging for, and whether it has used the hourly rate of the lowest paid employee capable of performing the task. See G. L. c. 66, § lO(d)(ii); 950 C.M.R. 32.07(2)(i). Fees for copies Under the current Regulations, a custodian of records may assess a maximum fee of five cents per page for a black and white single or double-sided photocopy of a public record. 950 C.M.R. 32.07(2). A copying fee shall not be assessed for electronic copies. Id. A records access officer shall presume a requester prefers electronic copies and must provide electronic records in native form when possible. 950 C.M.R. 32.07(1). The DOC's estimate includes a charge of "$10.00 for 200 black and white copies." Based on the DOC's estimate it is uncertain whether the DOC is charging five cents or less per page and whether the fee reflects the actual cost or reproducing the records.

Ja ileen A. Hopkins SPRl 7/1558 Page 5 November 15, 2017 Order I find the DOC must revise its fee or provide a further explanation of how the fee assessed is consistent with G. L. c. 66, § 10(d ) and identify what responsive records it possesses and intends to provide. I understand a Public Records Division staffmember contacted you about this matter and you indicated the DOC would provide a supplemental response to Mr. Zwicker. Accordingly, I will consider this administrative appeal closed with the proviso that the DOC provides a response in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. 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. Mr. Zwicker may appeal the substantive nature of the DOC's response within ninety days. See 950.C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: John Zwicker