Kenneth Faulk v. Department of State Police - Crime Lab (SPR 20190980)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 28, 2019 SPR19/0980 Darina Griffin Legal Counsel Massachusetts State Police Crime Laboratory 124 Acton Street Maynard, MA 01754 Dear Attorney Griffin: 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. G. L. c. 66, § 10(d )(iv). As required by law, the Department provided a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv)(2). On April 29, 2019 Mr. Kenneth Faulk requested two categories of records including "any and all gun testing" for the year 2007 and "any and all document you may have in your state police crime lab about me." 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, § lO(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 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

Darina Griffin, Esq. SPR19/0980 Page 2 May 28, 2019 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § lO(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). Current petition In its petition dated May 20, 2019, the Department seeks "approval to assess fees for costs associated with responding to a public records request submitted by Kenneth Faulk." The Department indicates "[a] cursory search of the Department's electronic database indicates that there are approximately 718 firearms files relating to firearms testing by the lab, involving 999 firearms." The Department explains "[t]he first category of records in question contain privileged or exempt information such as suspect identifying information and investigatory information. These categories of information are specifically exempt pursuant to G.L. c. 4, §7, cl. 26(a), (c) and (f), and are not subject to public disclosure." Further, the Department explains "[l]aboratory files include records and data compiled by a Massachusetts criminal justice agency, which concern identifiable individuals and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, and other judicial proceedings ... records are likely to contain defendants name and other Criminal Offender Records Information ('CORI') that is statutorily protected from disclosure." The Department states "[t]he information falls squarely within the G.L. c. 4, §7, cl. 26(a) exemption because releasing the requested information would violate the G.L. c. 6, § 172, the CORI statute. In addition to the CORI information, the documents may also contain witness information and statements that would have to be redacted pursuant to the investigative exemptions set forth in G.L. c. 4, §7, cl. 26 (f)." The Department also asserts "these records may contain information

Darina Griffin, Esq. SPR19/0980 Page 3 May 28, 2019 that is considered exempt pursuant to G.L. c. 4, §7, cl. 26 (f)" and that "[e]ffective law enforcement would be prejudiced if the Department were to disclose case files related to unresolved criminal proceedings." The Department provides "[g]iven the volume of the information the Department must review, the Department's good faith estimate cost amounts to $13,362.50." The Department explains "each file contains on average fifteen (15) pages" and "approximately three (3) minutes per page to review and make required redactions." Further, the Department states "[t]he total amount of time will, therefore amount to 538.5 hours to review and redact ... first four (4) hours of work will not be charged ... remaining 534.5 hours charged at the statutory rate of $25 amounts to a total of $13,362,50." Given these records may contain information relating to an ongoing investigation or pending appeal, 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. This office encourages Mr. Faulk and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § IO(b )(vii) (an agency municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Any updated fee estimate by the Department must be in compliance with this determination, the Public Records Law, and its Access Regulations 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, 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). 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 Mr. Faulk within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Faulk 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, § IOA.

Darina Griffin, Esq. SPR19/0980 Page 4 May 28, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Kenneth Faulk