Matthew Rocheleau v. Massachusetts Environmental Police (SPR 20182056)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S, Murray Supervisor of Records

January 3, 2019 SPR18/2056

Julia O’ Leary, Esq.

Massachusetts Environmental Police 251 Causeway Street, Suite 101 Boston, MA 02114

Dear Attorney O’ Leary:

I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Massachusetts Environmental Police (MEP) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on November 19, 2018, Mr. Rocheleau requested “[a]ny/all documents/materials, including but not limited to full case files, related to internal investigation and internal/external complaints filed, received, or reported to [] whoever handles internal affairs/internal investigations for the Massachusetts Environmental Police-- including but not limited to cases involving individual officers -- from Jan. 1, 2015 through present.” The MEP provided a response on December 5, 2018, providing a fee estimate.

Objecting to the fee, Mr. Rocheleau petitioned this office and this appeal, SPR18/2056, was opened as a result.

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, § 10(d)(@).

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, § 10(d)(i). 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

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

Julia O’ Leary, Esq. SPR18/2056 Page 2 January 3, 2019

Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 950 C.MLR. 32.06(4).

The MEP’s December 5 response

In its December 5, 2018 response, the MEP states that this request would require it to review and process approximately 22 case files containing over 300 pages of material. The MEP indicates that it maintains a centralized electronic database which is a repository of all relevant materials related to its internal affairs investigations. The MEP explains that based on a review of its database, it has “. . . determined that five case files will be withheld from production under [Exemption (f)], as the officer in question is currently under investigation.”

The MEP states that it would require approximately 10 hours to review and redact potentially exempt material from the remaining 17 case files before production of responsive records. As such the MEP indicates that the total cost is $250 (10 hours x $25/hour). The MEP explains that this amount “. . . excludes the four (4) hours that MEP staff have already spent locating and segregating this material.”

The MEP notes that it reserves the right to charge for the production of the five remaining case files which are being withheld at this time pursuant to Exemption (f). As such, the MEP estimates that it would require an additional 20 hours to process responsive records should Mr. Rocheleau request them in the future. Thus, 20 hours x $25/hour = $500.

Assessment of fees

In his petition for appeal, Mr. Rocheleau contends that he has asked the MEP “to waive its request for payment for the records given that it did not respond within 10 business days.”

G. L. c. 66, § 10(e) provides that “[a] records access officer (RAO) shall not charge a fee for a public record unless the [RAO] responded to the requestor within 10 business days under subsection (b).” See also 950 C.M.R. 32.06(2)(c). Based upon a review of the file, it appears the MEP received Mr. Rocheleau’s public records request on November 19, 2018. As such, it is unclear how the MEP complied with 950 C.M.R. 32.03(3) which states that “. . . the computation of time . . . shall begin with the first business day following the date of receipt of any request, regardless of physical form” and 950 C.M.R. 32.06(2)(e), which also states that “a written request for records, regardless of the form of delivery, will be deemed received on the first business day following receipt [of] the request by the [RAO].” Therefore, I find the MEP may not assess a fee unless it demonstrates that it responded to Mr. Rocheleau’s request within 10 business days following receipt of the request in compliance with G. L. c. 66, § 10(e) and 950 C.M.R. 32.06(2)(c). I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision.

Julia O’ Leary, Esq. SPR18/2056 Page 3 January 3, 2019

Conclusion

Accordingly, the MEP is ordered to provide a response to Mr. Rocheleau in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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.

Olesen

Rebecca S. Murray Supervisor of Records

cc: Matthew Rocheleau