Nasser Eledroos v. Department of State Police - Commonwealth Fusion Center (SPR 20181768)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 27,20 18 SPR1811768 Jason R. Stelmat Privacy Officer Massachusetts Department of State Police Commonwealth Fusion Center 124 Acton Street, Maynard 01754 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). In this matter, Nasser Eledroos requested: 1. All records containing or revealing boolcmarks on all web browsers on all computers at the Commonwealth Fusion Center; 2. All records containing or revealing the website browsing history on all web browsers on all computers at the Commonwealth Fusion Center; 3. Any records, including emails, containing references to the boolunarks for the webpages of the organizations listed in Exhibit B (attached to 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, 5 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 1719, Boston, Massachusetts 02108 (617) 727-2832. Fax: (61 7) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Jason Stelmat Page 2 November 27,201 8 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 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 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 a. 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, 8 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 1O (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). G. L. c. 66, 5 lO(d)(ii); 950 C.M.R. 32.06(4). Current Petition In your petition dated November 16,2018 , you expressed to this office that, "[oln October 30,2018 , the Department provided a response regarding items #I and #2 and asked Mr. Eledroos to supplement item #3 as the exhibits provided were illegible. On November 1,2018 , Mr. Eledroos provided a list of search terms and data parameters for item #3. That same day, the Department, through the Executive Office of Technology Services and Security (EOTSS), conducted a preliminary search of emails for the requested time period and recovered 1,053 potentially responsive emails."

Jason Stelmat Page 3 November 27,20 18 With respect to the redaction of records responsive to request 3, the Department states, "as a law enforcement agency, a large majority of the emails in question will have a nexus to past and pending investigations and may therefore be subject to redaction under M.G.L. c. 4, $7, cl. 26(c) and (f) as well as M.G.L. c. 6, $ 172. In order to conduct a proper evaluation of each email, any case referenced within the emails would have to be checked against 4 separate databases to determine the originating agency and case status. You further write, "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." The Department then asserts, "[tlhese 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." With respect to the amount of the fee to produce responsive records, you state "[gliven the volume of information requiring review, the Department's good faith estimate of cost amounts to $1,2 16.25. " You then explain "[tlhis amount is based upon the following: the Department will be required to review each of the 1,053 emails. The Department estimates, conservatively and in good faith, that it will expend an average of 3 minutes to review each email. Accordingly, the good faith estimate is calculated at (3,159 minutes160 minutes equals 52.65 hours). After subtracting the standard 4 hours the total is 48.65 hours at a rate of $25/hour which equals $1,216.25 ." I understand the Department provided Mr. Eledroos a fee estimate for the production of these records on November 16,2018 . You further add that "[als an additional showing of good faith, the Department has offered Mr. Eledroos a sample of 20 redacted emails at no cost to determine whether the content of the records meets his expectations." Conclusion In light of the Department's November 16'~pe tition, I find the Department has met its burden to explain how responsive records may require review for applicable exemptions. However, prior to opining on whether to grant the Department's petition to assess the fee described above, this office encourages Mr. Eledroos and the Department to continue to communicate to facilitate providing records more efficiently and affordably; for example, a review of the sample redacted emails the Department is willing to provide at no cost may facilitate producing records. G. L. c. 66, $lO(b)(vii). Mr. Eledroos may wish to also provide more specific or limited search terms and/or time periods. If despite this attempt at facilitating production of records the Department continues to seek a petition to assess fees, it may submit such a petition within 10 business days of the date of this determination.

Jason Stelmat Page 4 November 27,20 18 Sincerely, Rebecca S. Murray Supervisor of Records cc: Nasser Eledroos