Chris Burrell v. Suffolk County Sheriff's Department (SPR 20190768)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 30, 2019 SPR19/768 Jennifer C. Lyons, Esq. Assistant General Counsel Suffolk County Sheriffs Department 20 Bradston Street Boston, MA 02118 Dear Attorney Lyons: I have received the petition of Chris Burrell, of the New England Center for Investigative Reporting WGBH 89. 7 Public Radio, appealing the response of the Suffolk County Sheriffs Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, in an April 4, 2019 revised request Mr. Burrell indicated he was seeking: "expenditure amounts for out-of-state travel for FYl 8 and FYl 9, to date. I no longer am requesting actual receipts for such travel. To clarify by official travel, I mean any out-of-state travel by any sheriff staff, excluding inmate transports." On April 5, 2019, the Department provided a fee estimate requiring Mr. Burrell submit a preliminary fee of $150.00. As a result, Mr. Burrell petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Fees If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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). 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

Jennifer C. Lyons, Esq. SPR19/768 Page 2 April 30, 2019 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)(ii); 950 C.M.R. 32.06(4). The Department's April 5, 2019 estimate In its April 5th fee estimate, the Department indicates: "[t]he preliminary fee for this request is the sum of one hundred fifty dollars ($150.00), calculated by the time estimate for the lowest paid person that is qualified to comply with the request: 6 hours at $25 per hour, in addition to the initial 4 hours for a total of 20 hours. A fee has not been assessed on the first 4 hours of work required to comply with the request. If the final fee varies from the estimate at the conclusion of the request, you will be entitled to a refund; or, if it is less than the estimate, you may be assessed an additional amount if it exceeds the estimate." The Department's estimate indicates a total of twenty (20) hours of time at $25.00 per hour, which the Department reduced by 4 hours of time in compliance with the requirements in the Public Records Law. See G. L. c. 66, § lO(d)(ii). You informed Mr. Burrell that the Department is charging him for 6 hours of time at $25.00 per hour, which is the maximum hourly rate that is allowed by the Public Records Law. See G. L. c. 66, § lO(d)(ii). However, the Department has not explained what tasks are necessary in order to comply with the request. I find that the Department's revised estimate must explain what tasks are necessary to provide the requested records, and explain how much of the 6 hours of time is allocated to each task. Further, I find that the Department must clarify why the $25.00 maximum rate is the lowest hourly rate of the employee who is capable of conducting those tasks. In a telephone conversation with a Public Records Division staff attorney, you explained that the Department does not retain travel expenditure records in a computer database or in any other computerized record. The Department assessed a preliminary fee of 6 hours of time because the travel expenditure records are in paper format and not readily available on-a computer. In its April 5th response, the Department did not detail what records it actually has in its possession, custody and control that are responsive to the request; what format the records are in and how those records are organized. See G. L. c. 66, § 1O (b )(ii), (iii).

Jennifer C. Lyons, Esq. SPR19/768 Page 3 April 30, 2019 Conclusion Accordingly, the Department is ordered to provide Mr. Burrell with a revised fee estimate, in a manner consistent with this order, the Public Records Law and its Regulations within 10 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: Chris Burrell