Thomas Workman Jr., Esq. v. Executive Office of Public Safety and Security (SPR 20181438)

The Com1nonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 4, 2018 SPRlS/1438 Doug Levine, Esq. Special Counsel Executive Office of Public Safety and Security 1 Ashburton Place Room 213 3 Boston, MA 02108 Dear Attorney Levine: I have received your petition on behalf of the Executive Office of Public Safety and Security (Office/EOPSS) seeking to charge for time spent segregating and redacting public records. G. L. c. 66, § lO(d)(iv). As required by law, the Office furnished a copy of this petition to the requestor. G. L. c. 66, § lO(d)(iv). In this matter, Thomas E. Workman requested "[a]ll email messages since January 1, 2011 that have either 'Workman' or 'Bernard' in the subject, message text, or in the attachments that where sent or received by any person at [the Office of Alcohol Testing]." The message was subsequently clarified to only seek messages containing the term "Workman." In its petition dated September 26, 2018, the Office notes, "EOPSS, through the Executive Office of Technology Services (EOTSS), conducted a preliminary search for emails for the designated time period and was advised that there are 6,073 emails responsive to this request." Petition to Assess Fees 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 (Supervisor) under a petition under G. L. c. 66, § 10 (d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). The Supervisor may approve a petition from a municipality to charge for time spent segregating or redacting, or to charge in excess of $25 per hour, 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 municipality to comply with the request, the fee is necessary such that the request could not have been prudently completed without the redaction, segregation or fee in excess of $25 per hour, and the amount of the fee is reasonable and the fee is not designed to limit, deter or prevent access to requested public records. G. L. c. 66, § lO(d)(iv). 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

Doug Levine, Esq. SPR18/1438 Page 2 October 4, 2018 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). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality's petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d )(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 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 under a petition under G. L. c. 66, § 10(d )(iv). See G. L. c. 66, § 10(d )(ii); 950 CMR 32.06(4). Current Petition 11 In its September 2i petition the Office states, "[a]s a state agency with the responsibility for maintaining extensive confidential information, EOPSS has an obligation on behalf of the Crime Lab to ensure proper procedures are maintained to prevent the dissemination of

Doug Levine, Esq. SPR18/1438 Page 3 October 4, 2018 information which is protected from disclosure by law. Fulfilling such an obligation requires a careful review and segregation ofrecords intended for disclosure." The Office explains that the records are within the Massachusetts State Police Crime Laboratory (Crime Lab). You also explain "the Crime Laboratory employees' emails undoubtedly contain privileged and exempt information such as attorney-client communications, CORI data, intelligence and investigative data, personnel, private, and security-related information, as well as information related solely to internal personnel rules and practices of government necessary to withhold to ensure the proper performance by the Crime Lab. These categories of information are specifically exempt pursuant to G.L. c. 4, § 7, cl. 26 (a), (b), (c), (f), and/or (n) and are not subject to public disclosure. Accordingly, the information must be segregated and redacted from the email records before the emails are produced to a third party such as the requestor." The Office then states, "[s]ome information is simultaneously protected by more than one exemption or different exemptions depending on context or the time of disclosure. The fee estimates provided are for the segregation and redaction process as a whole, and in the view of EOPSS, cannot be split up by exemption. Since the segregation and redaction process is required by law, EOPSS is entitled to charge a fee for the cost of production and does not view this petition as a necessary prerequisite to charging a fee to the requestor and has communicated its fee estimate to the requestor separately." In support of its request the Office writes, "[g]iven the volume of information requiring review, EOPSS's good faith estimate of cost amounts to $7,475 based on the following. EOPSS estimates, conservatively and in good faith, that it will expend an average of 3 minutes to review each email and any attachments. Accordingly, the good faith estimate of costs amounts to $7,475 (18,219 minutes/ 60 minutes equals 303 hours -4 hours= 299 hours* $25 per hour)." In light of the Office's September 26th petition, the Office 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 Office has also demonstrated the fee is not designed to limit, deter or prevent access to requested public records. Id. Therefore, the Office may assess a fee for the time spent to segregate and redact the requested records. However, it is not clear why 3 minutes is needed to review each email; for example it is unclear what type of content appears in these emails. Conclusion For the reasons described above, the Office is allowed to charge for the time to segregate and redact the requested records. However, the Office must explain why 3 minutes is necessary to review each email and any attachments. Where applicable, this office encourages Mr. Workman and the Office to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66,

Doug Levine, Esq. SPRIS/1438 Page 4 October 4, 2018 §1 O (b )(v ii) ( 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). 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), lOA(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Thomas E. Workman