Michael Dreslinski v. Massachusetts State Police (SPR 20180518)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 2, 2018 SPR18/518 Alycia DeAngelis, Esq. Department of State Police - Office of Chief Legal Counsel 470 Worcester Road Framingham, MA 01702 Dear Attorney DeAngelis: I have received the petition of Michael Dreslinski appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, in a letter dated January 1, 2018, Mr. Dreslinski requested a copy of "[a]ll records created and received by the Commonwealth Fusion Center, regardless of date, regarding" an identified individual. Previous appeal This request was the subject of a previous appeal. See SPRl 8/300 Determination of the Supervisor of Records (March 21, 2018). I closed SPR18/300 by ordering the Department to _____p _r_o-vf'de Mr. DresfmsKI with responsive records, proviaecfin a manner cons1··-s~te_n_t_w~it~h-t~h_e_o-rd~e-r-,- ----- the Public Records Law and its Regulations within ten business days. On March 27, 2018, the Department provided a supplemental response to Mr. Dreslinski, which included a fee estimate. Unsatisfied with the Department's response, Mr. Dreslinski petitioned this office and this appeal, SPRl 8/518, was opened as a result. 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, § lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. 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

Alycia DeAngelis, Esq. SPR18/518 Page 2 May 2, 2018 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 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, § lO(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, § 10(d )(ii); 950 C.M.R. 32.06(4). The Public Records Law provides that a records access officer (RAO) shall not charge a fee for a public record unless the RAO responded to the requestor within 10 business days. G. L. c. 66, § lO(e)(ix). The Department provided Mr. Dreslinski with an initial response to his January 1, 2018 dated request in a letter dated February 6, 2018. As such, it is unclear whether this response was provided within ten business days of receipt of the request. The Department is not permitted to charge a fee for production of responsive records unless it provided an initial response to Mr. Dreslinski within ten business days. The Department must clarify this matter or provide responsive records. I understand a member of the Public Records Division staff contacted your office about this matter, but was unable to reach you prior to the issuance of this determination. Order Accordingly, the Department is hereby ordered to either clarify how its fee is provided for in the Public Records Law or in the alternative, provide Mr. Dreslinski with responsive records, provided in a manner consistent with the order, the Public Records Law and its

Alycia DeAngelis, Esq. SPR18/518 Page 3 May 2, 2018 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. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Michael Dreslinski