Kade Crockford v. Department of State Police - Commonwealth Fusion Center (SPR 20181492)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 16, 201 8 SPR1811492 Jason R. Stelmat Privacy Officer Massachusetts State Police I Commonwealth Fusion Center 124 Acton Street Maynard, MA 0 1754 Dear Mr. Stelmat: I have received your petition on behalf of the Department of State Police (Department) seeking to charge for time spent segregating and redacting public records. G. L. c. 66, 5 1O (d)(iv). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, 5 lO(d)(iv). Kade Crockford initially requested eight categories of records related to facial recognition products or services. As explained in the Department's October 9,2018 petition, Ms. Crockford revised the request on September 27,2018 with respect to categories 1 and 2 of the request. Therefore, I understand the requests at issue in this petition are the following: 1. Communications between any representative of the Massachusetts State Police and any representative of any vendor offering any facial-recognition product or service. 2. Internal communications between representatives or employees of the Massachusetts State Police relating to any facial-recognition product or service. 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, fj 10 (d)(iv). See G. L. c. 66, 5 lO(d)(iii); 950 C.M.R. 32.06(4). 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, 5 lO(d)(iv). One Ashburton Place, Room 17 19, Boston, Massachusetts 0210 8 (6 17) 727-2832. Fax: (6 17) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Jason R. Stelmat Page 2 October 16,2018 The statute sets out a two-prong test for determining whether the Supervisor may approve an agency's petition to allow the agency to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, 5 1O (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 agency 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; 2) the amount of the fee is reasonable; and 3) the fee is not designed to Id. limit, deter or prevent access to requested public records. 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, 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, compile, 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 wlio 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 lO(d)(ii); 950 C.M.R. 32.06(4). Current Petition In its October 9thp etition the Department states "[alfter discussing specific search terms to facilitate a response to requests #1 and #2, the Department, through 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 approximately 37,000 emails responsive to this request. In an effort to further narrow the scope, Ms. Crockford requested that the response only include emails originating from Department email addresses ending in '@state.ma.us.' A final search was conducted which produced 8,965 emails."

Jason R. Stelmat Page 3 October 16,201 8 With respect to the redaction of responsive records, the Department asserts that "a large percentage of [Dlepartment emails involve highly sensitive matters. Further, given our office's and our agencies' collaboration with other state and federal agencies on criminal investigations and other matters regarding state and national security, the resulting emails undoubtedly contain privileged and exempt information such as 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 of the Massachusetts State Police." You note that "[tlhese categories of information are specifically exempt pursuant to G.L. c. 4, 5 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." With respect to the amount of the fee to produce responsive records, you explain that the Department will be required to review each of the 8,965 emails and that the Department "estimates, conservatively and in good faith, that it will expend an average of 3 minutes to review each email." I understand the Department provided Ms. Crockford a fee estimate for the production of these records on October 9,201 8 . In light of the Department's October 9thp etition, I find 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, 5 1O (d)(iv). The Department has also demonstrated the fee is not designed to limit, deter or prevent access to requested public records. Id. Therefore, the Department 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 Department is allowed to charge for the time to segregate and redact the requested records. However, the Department must explain why 3 minutes is necessary to review each email. Where applicable, this office encourages Ms. Crockford and the Department to continue See to communicate to facilitate providing records more efficiently and affordably. 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). 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, 5 1O (d)(iv)(4), 1O A(c) .

Jason R. Stelmat Page 4 October 16,2018 Sincerely, - Rebecca S. Murray Supervisor of Records cc: Kade Crockford