Shane Moffat v. Department of Correction - Legal Division (SPR 20190451)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 11, 2019 SPR19/0451 Kate M. Silvia Department of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Shane Moffat appealing the response of the Department of Correction (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on January 7, 2019, Mr. Moffat requested" ... copies ... of the following agency records: 1. 'Overcoming The Odds' Program initiative Program Application. 2. 'Restorative Justice' Program Application 3. 'Medication Assisted Treatment Reentry Initiative' (MATRI) Program Application" Mr. Moffat mentioned that the records" ... include memoranda, correspondence, analyses, evaluations, policies, reports, notes of meetings, and other written records or records by any other means, including but not limited to records kept on computers, electronic communications or video tapes." The Department provided responses on January 25, 2019, and February 5, 2019. Unsatisfied with the Department's responses, Mr. Moffat petitioned this office and this appeal, SPRl 9/0451, was opened as a result. Fee estimate -Agencies 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, § 10(d )(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than 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

Kate M. Silvia SPR19/0451 Page 2 March 11, 2019 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 CMR 32.06(4). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's January 25th response In its January 25, 2019 response, the Department states " ... that the Overcoming the Odds program and the Medication Assisted Treatment Reentry Initiative did not require program applications as both were Governor Initiatives. However, enclosed is the Overcoming the Odds Memorandum of Understanding between the Boston Police Department and the [Department]." The Department also provided the" ... Medication Assisted Treatment Reentry Initiative Guidelines and the MCI Concord Restorative Justice Program Application." The Department informed Mr. Moffat that it" ... is currently putting together a cost estimate for all other documents pertaining to [Mr. Moffat' s] request. ..." The Department's February 5th response In its February 5, 2019 response, the Department states "[i]n accordance with M.G.L. c. 66, § lO(b) and 950 C.M.R. 32.07(2), [it] ha[s] determined that a charge of$9,493.00 is necessary to process this production. A total of 151,860 documents have been identified and would take staff approximately 80 hours to complete. This amount includes: black and white copies at $.05 a page ($7593.00) and $25.00 an hour for employee time ($1900.00), excluding the first four hours." Fees to search for, compile, segregate, redact or reproduce a record request The Regulations provide that in cases where necessary to reproduce the requested records a records access officer may charge a fee to search for, compile, segregate, redact or reproduce a record requested based on the hourly rate of the lowest paid employee who is capable of performing the task. G. L. c. 66, § lO(d); see also 950 C.M.R. 32.07(2). Additionally, the reasonable fee for reproduction shall not exceed the actual cost of reproducing the record. 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). In the Department's response, it stated that "[a] total of 151,860 documents have been identified and would take staff approximately 80 hours to complete." Based on the Department's

Kate M. Silvia SPR19/0451 Page 3 March 11, 2019 response, it is unclear why 80 hours is required to produce responsive records. It is additionally uncertain what the 80 hours is comprised of, particularly, it is unclear whether the 80 hours includes time to search, segregate, redact, or reproduce records. The Department must clarify this matter. Employee time 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)(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. Although the Department indicates that it assessed an hourly rate of $25.00, it is unclear whether the Department used the hourly rate of the lowest paid employee capable of performing the task. See G. L. c. 66, § IO(d)(ii); 950 C.M.R. 32.07(2)(i). The Department must clarify this matter. Waiver off ees In his appeal petition Mr. Moffat requests that the Supervisor of Records "[o ]rder the [Department] to provide the requested records without any additional costs or fees." Please be advised the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request. The records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. See G. L. c. 66, § IO(d)(v); see also 950 C.M.R. 32.07(2)(k) (emphasis added). Inspection ofa public record Further, in his appeal petition, Mr. Moffat also requests that the Supervisor of Records "[o ]rder the [Department] to allow [him] to review the requested records to minimize time related to copying documents." G. L. c. 66, § 1 O(a) provides that a records access officer shall "permit inspection or furnish a copy of any public record ... " In light of this, this office encourages the Department and Mr. Moffat to communicate further to enable the Department to provide any requested public records in order to minimize the cost of producing responsive records. 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.

Kate M. Silvia SPR19/0451 Page 4 March 11, 2019 Conclusion Accordingly, the Department is ordered to provide Mr. Moffat 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: Shane Moffat