Kathy Curran v. Massachusetts State Police (SPR 20190673)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 3, 2019 SPR19/0673 Sean W. Farrell Deputy Chief Legal Counsel Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Farrell: I have received your petition on behalf of the Massachusetts Department of State Police (Department) requesting to charge for time spent segregating or redacting public records in responding to a request made by Kathy Curran of WCVB-TV. G. L. c. 66, § lO(d)(iv). As required by law, the Department provided a copy of this petition to the requestor. G. L. c. 66, § I0(d)(iv)(2). Ms. Curran requested "access to the body camera footage from the following dates" and listed 7 dates from February 4, 2019 to March 7, 2019. 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, § 10(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, § IO(d)(iv). It is my determination that the request is not 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 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

Sean W. Farrell, Esq. SPR19/0673 Page 2 April 3, 2019 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, § lO(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). Current petition In its petition dated March 27, 2019, the Department seeks "approval to assess fees for costs associated with responding to a public records request submitted by Ms. Kathy Curran on March 13, 2019." The Department indicates they have "conducted a preliminary search of BWC videos for the designated dates and has estimated, in good faith, that the subject dates encompass approximately eighty (80) hours of video." The Department explains "[t]hese cameras are activated during vehicle stops, arrests, citizen encounters, and other law enforcement related events. See ADM-35." Further, the Department explains "[g]iven the circumstances under which these cameras are activated, camera video and audio may contain information relating to an arrest and relating to an on-going prosecution or investigation, medical situations, the identity of minors and witness(es), private information relating to individuals seen and/or heard on camera, and/or intelligence, and security related information. These categories of information are specifically exempt pursuant to G.L. c. 4, §7, cl. 26 (a)(CORI, arrest related information), (c)(medical, minors, privacy) (f)(investigative and witness identity), and are not subject to public disclosure. Accordingly, the information on each video must [be] reviewed and redacted/withheld where required." The Department provides "that each video, on average, is approximately six (6) minutes long resulting, on average, of about 800 videos. Given the volume of information/videos the

Sean W. Farrell, Esq. SPR19/0673 Page 3 April 3, 2019 Department must review ... Depending on the content of the video, the Department will have to make video/audio redactions if necessary. Accordingly, the Department's good faith estimate of costs amounts to $1900.00 (80 hours - 4 hours waived: (76hrs x $25.00 per hr.= $1900)." Given these records contain video and audio that may contain information relating an on going prosecution or investigation, medical situations, the identity of minors and witnesses, and security related information, the Department has met its burden to explain how the request could not prudently be completed without redaction or segregation under applicable statutes. See G. L. c. 66, § 10(d )(iv). Therefore, the Department may assess a fee for the time spent to segregate and redact these requested records. Conclusion In light of the Department's petition, I find the Department has met its burden to explain how responsive records may require review for applicable exemptions. To the extent the responsive records contain the exempt information as described above, the Department may assess a charge for the segregation and redaction of such exempt material. When preparing a fee estimate for the provision of the requested records, the Department is advised to provide a detailed explanation to the requestor indicating why this estimated amount of time is necessary. See G. L. c. 66, § lO(d)(iv) (requiring the amount of the fee must be reasonable). Please note, the Supervisor does not possess the authority to permit the Department to charge for the first four hours of employee time. The Department must also provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. The Department shall provide a response to Ms. Curran within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Curran may appeal the Department's fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please be aware, 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, § 1 OA. Sincerely, Rebecca S. Murray Supervisor of Records cc: Kathy Curran