Daniel Kaufman v. Department of State Police - Commonwealth Fusion Center (SPR 20190665)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 4, 2019 SPR19/0665 Jason R. Stelmat, Privacy Officer Commonwealth Fusion Center Massachusetts State Police 124 Acton Street Maynard MA O1 754 Dear Officer Stelmat: I have received your petition on behalf of the Massachusetts State Police Commonwealth Fusion Center (Center) requesting permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § lO(d)(iv); see also 950 C.M.R. 32.06(4). On February 11, 2019 Daniel Kaufman requested, "[a]ny and all communications, memorandum, reports, and documents individually or jointly referencing the hate groups The Daily Stormer, Aryan Strike Force, and The Gallows Tree Wotansvolk Alliance." Subsequent to communications between the Center and Mr. Kaufman regarding the search parameters of the request, on March 11, 2019, Mr. Kaufman confirmed he wanted to proceed with the request. Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from an agency to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the agency to comply with the request. G. L. c. 66, § lO(d)(iv). 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 or to charge in excess of $25 an hour for the provision of public 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 the request is not for a commercial purpose. One Ashbllrton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Jason R. Stelmat SPR19/0665 April 4, 2019 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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. 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)(iii); 950 C.M.R. 32.06(4). Conclusion The Center submitted their petition on March 28, 2019 more than ten business days after receipt of the request. In light of the fact the Center has not demonstrated it submitted a timely petition, permission to charge for time spent segregating or redacting responsive records cannot be granted. 950 C.M.R. 32.06(4 )(g). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Daniel Kaufman