Andrea Estes v. Massachusetts State Police (SPR 20181647)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 23, 2018 SPRlS/1647 Michael Halpin, Esq. Records Access Officer Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Halpin: I have received your petition on behalf of the Massachusetts Department of State Police (Department) requesting permission to charge for time spent segregating or redacting responsive records under G. L. 66, § IO(d)(iv). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d )(iv). Andrea Estes of the Boston Globe requested specifically identified internal affairs reports. 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, § 10( 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, § 10(d )(iv). 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, § lO(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 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 Halpin, Esq. SPR18/1647 Page 2 November 23, 2018 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 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 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 Records 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). Current Petition The Department initially requested approval to assess fees for costs associated with responding to a public records request submitted by Ms. Estes on October 29, 2018. On November 15, 2018, the Department provided a revised petition based on Ms. Estes "narrowing down the requested records to investigative reports only." Fee to review for exempt material The Department explains that "[t]he reports in question contain privileged or exempt information such as personal identifying information, witness information, and sensitive personnel information. These categories of information are specifically exempt pursuant to G.L. c. 4, §7, cl. 26 (a), (c), and (f). Information falling under these exemptions and are not subject to public disclosure. Accordingly, the information must be redacted from the records." The Department estimates it will cost $75.00 to produce the requested information and explains that "[t]his amount is based upon the following calculations: it will take approximate 3 minutes to review each page, multiplied by 62 pages, divided by 60 to convert the figure from minutes to hours, less O hours ( over the statutory 4, where it took petitioner 4 hours to draft and

Michael Halpin, Esq. SPR18/1647 Page3 November 23, 2018 prepare both the forgoing fee petition and cost estimate letter in order to accommodate requesters amended records request) is 3 hours. This figure is multiplied by the statutory hourly rate of $25.00 per hour, bringing the total sum to $75.00." Although portions of responsive records may fall within an exemption, it is unclear clear why the scope of redactions on each page would require 3 minutes of review time, particularly in light of the public nature of internal affairs reports. See Worcester °Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 7-11 (2003). First 4 hours to produce records In its November 15th revised fee estimate to Ms. Estes the Department acknowledges that it may not charge for the first 4 hours of work to produce these records; however, the Department indicates that "[p] reparing this cost estimate letter, reviewing and collecting the responsive material and drafting a fee petition to the Supervisor of Records Office and its subsequent amendment has already taken 4 hours of time." G. L. c. 66, § 10( d)(ii) provides the following: if an agency is required to devote more than 4 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested, the records access officer may also 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 (A) shall not be more than $25 per hour; (B) shall not be assessed for the first 4 hours of work performed; and (C) 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 clause (iv). Although the Department includes the time it took to prepare a fee estimate and its petitions to this office as part of its first 4 hours of employee time to produce records, it is unclear how preparing these documents constitutes time "to search for, compile, segregate, redact or reproduce a record requested" that is allowed to be included as part of a fee under G. L. C. 66, § 10(d )(ii). Therefore, since the Department is seeking to charge for only 3 hours of time to review the records for potential redaction and/or segregation, the Department has not established how it is "required to devote more than 4 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested," thus allowing it to "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" in compliance with G. L. c. 66, § 10( d)(ii).

Michael Halpin, Esq. SPR18/1647 Page 4 November 23, 2018 Conclusion Accordingly, I decline to grant the Department's petition at this time. See G. L. c. 66, § lO(d)(iv) (the Supervisor must consider whether the amount of the fee is reasonable). The Department must provide a reponse to Ms. Estes in a manner consistent with this determination, the Public Records Law, and its Regulations. Sincerely, '»Uuvw _ ~ ~ Rebecca S. Murray Supervisor of Records cc: Andrea Estes