Nasser Eledroos v. Department of State Police - Commonwealth Fusion Center (SPR 20182021)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 20, 2018 .SPR18/2021 Jason R. Stelm.at Privacy Officer Massachusetts Department of State Police Commonwealth Fusion Center 124 Acton Street Maynard, MA 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, § lO(d)(iv). As required by law, the Department furnished a copy ofthis petition to the requestor. G. L. c. 66, § lO(d)(iv). In this matter, Nasser Eledroos requested: 1. All records containing or revealing bookmarks 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 bookmarks for the webpages of the organizations listed in Exhibit B (attached to request). This request was the subject of a previous petition. See SPRl 8/1768 Determination of the Supervisor of Records (November 27, 2018). In the November 27th determination I found that the Department had 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 this office encouraged Mr. Eledroos and the Department to continue to communicate to facilitate providing records more efficiently and affordably. The Department submitted another petition on December 12, 2018 and SPRl 8/2021 was opened as a result. Petition to Assess Fees A fee shall not be assessed for time spent segregating or redacting records unless such One Ashburton Place, Roorn 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Jason Stelmat SPR18/2021 Page 2 December 20, 2018 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, § IO(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, § lO(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, § 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 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 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). a Agencies may not assess 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 repro.duce 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 under a petition under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § lO(d)(ii); 950 C.M.R. 32.06(4).

Jason Stelmat SPR18/2021 Page 3 December 20, 2018 Current Petition In your December lih petition you explain "[s]ince receiving the Supervisor's response, Mr. Eledroos has accepted the Department's offer to provide a sample of 20 redacted emails at no cost. The Department is currently working to provide that sample. In the meantime, the Department is still seeking approval to assess fees for the remainder of the records sought by Mr. Eledroos." The Department explains that "[o]n October 30, 2018, the Department provided a response regarding items #1 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 arid Security (EOTSS), conducted a preliminary search of emails for the requested time period and recovered 1,053 potentially responsive emails. As a result, on November 16, 2018, the Department submitted a cost estimate to Mr. Eledroos and a corresponding fee petition to the Supervisor of Records. At this time, the Department would reiterate its position regarding the imposition of fees associated with this request." W1th respect to the redaction of records responsive to request 3, the Department states " ... a large percentage of department 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. These categories of information are specificallyexempt 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 Department also notes that" ... 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. If a case belongs to an outside agency, that agency may have to be contacted to determine the status of the case. This process only speaks to the statutory exemption for pending cases. Additional consideration would be made for other exemptions." With respect to the amount of the fee to produce responsive records, you state "[t]he Department has previously reviewed email records for public records requests and based on those previous experiences, 3 minutes is a very conservative estimate. In the past, when the Department estimated 1 minute per email, the estimate was egregiously inadequate. The result

Jason Stelmat SPR18/2021 Page4 December 20, 2018 was that the Department did not charge nearly enough for the resources ultimately required for production and the requestor' s expectations about the time it would take to produce the records were not possible to meet." The Department is assessing an hourly rate of $25 per hour. You provided Mr. Eledroos a sample of 20 emails with portions redacted under Exemption (n) on December 13, 2018. The Department also redacted contact information for individuals that are not employed by the Department. You note that Mr. Eledroos informed you that he is interested in obtaining the remainder of the emails. In light of the Department's December 12th petition, 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, § 10(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 remaining responsive records. Conclusion For the reasons described above, the Department is allowed to charge for the time to segregate and redact the requested records. See G. L. c. 66, § lO(d)(iv). Where applicable, this office encourages Mr. Eledroos and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 1 O(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, § 10(d)(iv)(4), lOA(c). Sincerely, ~~ Supervisor of Records cc: Nasser Eledroos