Jordan Graham v. Department of State Police - Crime Lab (SPR 20180692)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 18, 2018 SPRlS/692 Kerry A. Collins, Esq. Massachusetts State Police Crime Laboratory 124 Acton Street Maynard, MA 01754 Dear Attorney Collins: I have received your petition on behalf of the Massachusetts Department of State Police (Department) requesting permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § IO(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § I0(d)(iv)(2). In a request submitted on April 27, 2018, Jordan Graham requested "all communication between State Police and third-party DNA analysis firms." Petitions for ability to assess fees 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 C.M.R. 32.06(4). 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

Kerry A. Collins, Esq. SPR18/692 Page 2 May 18, 2018 The Supervisor of Records (Supervisor) may approve a petition from an agency to charge for time spent segregating or redacting 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, § lO(d)(iv). Current Petition In its May 11th petition the Department is requesting "approval to assess fees for costs associated with responding to a public records request submitted by Mr. Jordan Graham." The Department indicates "the Executive Office of Technology Services and Security (EOTSS), conducted a preliminary search of emails for the designated time period and advised that there are 13,600 emails responsive to this request." The Department explains "these emails undoubtedly contain privileged or exempt information such as CORI data, intelligence and investigative data, and CODIS information." They state "[t]hese categories of information are specifically exempt pursuant to G. L. c. 4, §7, cl. 26 (a) and (f)." They also cite the CORI and CODIS statutes as applicable to the records for segregation and redaction. I understand the Department provided an initial fee estimate to Mr. Graham. The fee totals $2,725.00 and the Department explains "to review each of the 13,600 emails .. .it will expend on average 30 seconds to review each email." This totals 113 hours ofreview at a rate of $25.00 an hour. In light of the Department's May 11th petition, the Department has met its burden to explain how the fee is necessary such that the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § lO(d)(iv). The Department has also demonstrated the fee is not designed to limit, deter or prevent access to requested public records. G. L. c. 66, § 10(d )(iv). Therefore, the Department may assess a fee for the time spent to segregate and redact the requested records. Conclusion For the reasons described above, the Department is allowed to charge for the time to segregate and redact the requested records. This office encourages Mr. Graham and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §lO(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). If there is an updated fee estimate, it must be in compliance with this determination, the Public Records Law, and its Access Regulations.

Kerry A. Collins, Esq. SPR18/692 Page 3 May 18, 2018 Please note, the requestor 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, § 10(d)(iv)(4), IOA(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Jordan Graham