Maya Shaffer v. Massachusetts State Police (SPR 20181451)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 9,2018 SPR1811451 Siobhan E. Kelly, Esq. Office of Chief Legal Counsel Massachusetts State Police 470 Worcester Road Framingham, MA 0 1702 Dear Attorney Kelly: 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, 5 10A; 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 the fee estimate to this office. The Department provided Ms. Shaffer with another response on September 2 1,201 8 which Ms. Shaffer appealed to this office. 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, 5 10(d). The fees must reflect Id. the actual cost of complying with a particular request. 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, 5 lO(d)(i). Agencies may not assess a fee for the first four hours of employee time to search for, conlpile, segregate, redact or reproduce the record or records requested. G. L. c. 66, 5 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 Id. more than $25 per hour. 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, 5 lO(d)(iv). See G. L. c. 66, 5 10(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

Siobhan E. Kelly, Esq. Page 2 October 9,2018 Appeal Ms. Shaffer contends the fee "wasn't valid because it was a fee to provide a response not a fee to provide records." The Department stated in the September 21Str esponse to Ms. Shaffer that the "cost estimate was submitted for the amount of time that it would take to gather the responsive records, not to redact them." It is unclear what documents the Department will be redacting and the exceptions cited as required by law. G. L. c. 66, 5 1O (d)(iii) (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, 5 1O (d)(iv)) . Further, a records custodian may not charge a fee unless the custodian provides a written response in compliance with G. L. c. 66, 5 10(b) within ten business days following receipt of the request. G. L. c. 66, 5 10(e). The Department states in their September 21Str esponse "Ms. Shaffer filed her request with the Department on August 9,201 8. The Department responded 10 business days later, on August 23,2018, with a cost estimate." I find the Department must provide a copy of the cost estimate in order to demonstrate whether it responded to the records request within ten business days following receipt of the request in compliance with G. L. c. 66, 5 lO(e) and 950 C.M.R 32.06(2)(c). The Department explained to Ms. Shaffer that "the Department's Internal Affairs database is only able to be searched by employee name or identification number." The Department asserts it has in good faith attempted to narrow the request with Ms. Shaffer in order to provide the responsive records in a more efficient manner. See G. L. c. 66, 5 lO(b)(vii). This office encourages Ms. Shaffer to work with the Department to communicate a narrower scope to provide public records in an efficient and affordable manner. G. L. c. 66, 5 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). Conclusion Accordingly, the Department is ordered to provide Ms. Shaffer a written response made in accordance with the Public Records Law, its Access 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Maya Shaffer