Maya Shaffer v. Massachusetts State Police (SPR 20181321)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 6, 2018 SPRlS/1321 Michael B. Halpin, Esq. Chief Legal Counsel Massachusetts State Police 470 Worcester Road Framingham, MA O1 702 Dear Attorney Halpin: I have received the petition of Maya Shaffer appealing the response of the Massachusetts Department of State Police (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Ms. Shaffer made a public records request asking for "IA files of every trooper who has been reprimanded for logging shifts incorrectly in any way." The Department provided a fee estimate on August 23, 2018 and Ms. Shaffer appealed. This office provided a determination on September 14, 2018 that ordered the Department to provide Ms. Shaffer a written response made in accordance with the Public Records Law, its Access Regulations (Regulations) and the order. See SPR18/1321 Determination of the Supervisor of Records (September 14, 2018). The Department responded to the order on September 21, 2018 and Ms. Shaffer has inquired as to the enforcement of the order. 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 ($.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 4 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 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

Michael B. Halpin, Esq. SPR18/1321 Page 2 December 6, 2018 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). Appeal The Department's September 21st response indicates " ... this cost estimate was submitted for the amount of time that it would take to gather the responsive records, not to redact them as well" (emphasis in original). The Department also notes "[a]dditionally, Ms. Shaffer filed her request with the Department on August 9, 2018. The Department responded 10 business days later, on August 23, 2018, with a cost estimate." With respect to the Department's ability to search for responsive records, Attorney Siobhan E. Kelly indicates that "Ms. Shaffer requested all internal affairs files where a Department member was alleged to have 'improperly logged' their time. As I explained in my initial response to Ms. Shaffer, the Department's Internal Affairs database is only able to be searched by employee name or identification number." Attorney Kelly indicates that "[w]ithout a narrowing of the date range or being given the names of troopers whose records Ms. Shaffer is interested in, the Departments only means of fulfilling this request would be to manually review the over 6,000 physical files maintained by the Department's Internal Affairs Section." The Department also provides information regarding the amount of time needed to search for the records. In particular, Attorney Kelly indicates "[i]nternal affairs case files can range from 30-300 pages in length - this is all dependent on the number of charges and complexity of each individual investigation. Further, 'improperly logging time' is not a charge used by the Department in disciplinary cases. As a result, I am not able to review the charging documents associated with any of these 6,000+ cases and identify those who were charged with 'improperly logging time."' Attorney Kelly further notes that" ...a n allegation of 'improperly logging time' may be articulated in a variety of different ways arid would be dependent upon who the author of the report was. As a result, I would have to read through the entire investigative report in order to determine if an allegation of 'improperly logging time' was made. This is why the Department has determined, in good faith, that it would take 30 minutes to fully read each of these cases investigative reports in order to identify responsive cases." I find the Department has not met its burden to demonstrate why it requires 30 minutes to review each file for responsiveness; in particular, it is not clear why the Department cannot review fewer pages, instead of the entire file, to determine the nature of the investigation. See G. L. c. 66, § 10(d ) ( a records access officer may assess a reasonable fee for the production of a public record that does not exceed the actual cost of reproducing the record). The Department also notes that it reached out to Ms. Shaffer to discuss potentially narrowing the request. Attorney Kelly explains that" ... the Department's internal affairs database does not have a 'search engine' component - meaning a keyword search cannot be done. However, I am able to search by employee name or ID number. I have provided Ms. Shaffer with the Department's list of sworn members and Trooper Assignments, which is

Michael B. Halpin, Esq. SPR18/1321 Page 3 December 6, 2018 published on the Department's website at: https://www.mass.gov/files/documents/2018/05/02/ Empls%20 by%20Troop%205.2.18 O.pdf." Ms. Shaffer stated via email on September 21, 2018 that the "department has clarified that if I did pay the 78 thousand dollars they would not actually be providing the records I requested (further they have not said what records, if any, are responsive to my request). As such the 78 thousand dollars is not a fee estimate for records and no such fee estimate has been provided." In order to facilitate the production of responsive records, the Department must suggest a reasonable modification of the scope of the request; for example, the Department may be able to locate responsive internal affairs files that relate to troopers that have been publically identified as having been "reprimanded for logging shifts incorrectly in any way," or other sufficiently similar violations. See G. L. c. 66, § IO(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). Ms. Shaffer may wish to provide applicable time periods for the records she is seeking. See G. L. c. 66, § IO(a)(i) (the request must reasonably describe the public record sought). Conclusion Accordingly, the Department is ordered to provide Ms. Shaffer a written response made in accordance with the Public Reco~ds Law, its Regulations and this order within 10 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. ~ a y ~ Supervisor of Records cc: Maya Shaffer