Mikhael El-Bayeh v. Massachusetts State Police (SPR 20190224)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 19, 2019 SPR19/0224 Michael B. Halpin, Esq. Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Halpin: I have received the petition of Mikhael El-Bayeh appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. El-Bayeh requested "[c]opies of emails sent and receive by the [Department] with the subject or body of the email containing any of the following "Route 3", "Rt. 3", "Rt 3", or any such abbreviation that can reasonably be construed to have the same meaning, and "speed" within the subject or body of same email, during the five years preceding the date of this request." The Department responded to his request including a fee estimate. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) ( custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 B. Halpin, Esq. SPR19/0224 Page2 February 19, 2019 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 )(i). Agencies may not assess a fee for the first four ( 4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 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 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, § lO(d)(iv). See G. L. c. 66, § lO(d)(ii); 950 C.M.R. 32.06(4). Additionally, an agency "shall not charge a fee for the provision of a public record unless the records access officer responded to the requester within ten business days under M.G.L. c. 66, § lO(b)." 950 C.M.R. 32.06(2)(c). In Mr. El-Bayeh's petition for appeal, he includes a copy of his original request sent via email on December 19, 2018. He additionally includes the Department's responses, the earliest of which is an email dated January 8, 2019. Whereas, it appears the earliest response from the Department was not provided within ten business days of receipt of Mr. El-Bayeh's request, it is unclear how the Department is permitted to charge a fee. See id. The Department must provide another response to Mr. El-Bayeh explaining how its fee is permitted under the Public Records Law, or waiving its fee and providing the responsive records. Order Accordingly, the Department is ordered to provide Mr. El-Bayeh with a response to the request, provided 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. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Mikhael El-Bayeh