Seth Kershner v. Massachusetts State Police (SPR 20180909)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 27, 2018 SPRlS/909 Jenniffer P. Migliaccio, Esq. Staff Counsel Department of State Police State Police Headquarters 470 Worcester Road Framingham, MA 01702 Dear Attorney Migliaccio: I have received your petition on behalf of the Department of State Police (Department) requesting permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § lO(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, § 10(d)(iv)(2). On June 5, 2018 Seth Kershner requested "copies of all text messages and emails sent or received by Lt. Jeff McDonald, between October 1 and October 31, 2017, which contain the words 'photograph,' 'picture,' 'photographing,' 'photos,' 'Sandisfield' or 'pipeline."' 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, § IO(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, § lO(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 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

Jenniffer P. Migliaccio, Esq. SPR18/909 Page 2 June 27, 2018 (Supervisor) 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 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, § lO(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). The Department's petition In the Department's June 19th petition you explain "through the Executive Office of Technology Services & Security (EOTSS), conducted a preliminary search of emails for the designated time period with the identified search terms for Lt. Jeff McDonald's email account, and advised that there were, in total, 568 emails responsive to this request. Please note, Lt. Jeff McDonald does not have a Department issued cell phone." The Department provided a fee estimate to Mr. Kershner on June 19, 2018. Subsequent to the filing of this petition, Mr. Kershner amended his request on June 21, 2018. It is my understanding that in light of this amended request, the Department no longer seeks to assess a fee to comply with this request at this time. Accordingly, I find it is unnecessary to opine on the Department's petition. Sincerely, Rebecca S. Murray Supervisor of Records cc· Set