Yoshio Stackerman v. Department of State Police - Crime Lab (SPR 20191053)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 31, 2019 SPR19/1053 Darina Griffin, Esq. 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 Department of State Police Crime Laboratory (Department) requesting permission to charge for time spent segregating or redacting responsive records under G. L. 66, § 10 (d)(iv). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § lO(c). On May 7, 2019, Yoshio Stackerman requested "any and all files ... " for an identified docket. The Department received the request on May 13, 2019 and petitioned this office on May 24, 2019. Petition to Assess Fees 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 (Supervisor) under a petition under G. L. c. 66, § 10 ( d)(iv). See G. L. c. 66, § 10(d )(iii); 950 C.M.R. 32.06(4 ). 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. 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 this request was not made for a commercial purpose. 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. SPR19/1053 Page 2 May 31, 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; 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. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4 )(g). 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, § lO(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 of Records under a petition under G. L. c. 66, § 10(d )(iv). See G. L. c. 66, § 10(d )(ii); 950 C.M.R. 32.06(4). Current Petition The Department is requesting approval to assess fees when responding tothis records request. The Department indicates that as a result of "the volume of information the Department must review, this will impose an onerious burden on the Department which will have to devote limited resources to complete these tasks." The Department explains that they have "identified the responsive records, which total approximately 281 pages of documents and approxamently 385 photographs." The Department notes "the records in question contain privileged or exempt information such a Criminal Offender Record Information, criminalistics and/DNA data, private information, and witness names and statements. These categories of docuements are specifically exempt pursuant to G.L. c. 4, §7, cl. 26 (a), (c) and (f), and are not subject to public disclosure." As such, "the Department is required by law to review and redact the type of DNA testing records that are exempted from disclosure by law and redact those records." Further, the Department indicates that "the documents Mr. Stackerman is seeking also contain witness information, statements, and photographs. These documents would also have to be redacted ... "

Darina Griffin, Esq. SPR19/1053 Page 3 May 31, 2019 The Department's good faith estimate of cost amounts to $349.50. The Department noted that "the total estimate estimate is 14.05 hours to review and redact the documents pursuant to the law and 1.28 hours to review and redact the photographs pursuant to the law, for a total of 17.98 hours. The first four (4) hours of work will not be charged. The remaining 13.98 hours charged at the statutary rate of $25 amounts to a total of 349.50." The Department claims "[t]his fee represents an actual and good faith representation. The fee is necessary, reasonable, and not designed to limit, deter or prevent access to requested public records." 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, § 10(d )(iv). See G. L. c. 66, § 10(d )(iii); 950 C.M.R. 32.06(4 ). Petitions relating to fees must be submitted to the Supervisor within 10 business days after receipt of a request for public records. 950 C.M.R. 32.06(4 )(g). Conclusion In light of the Department's petition, I find the Department has met its burden to explain how the response to this request could not be prudently completed without redaction or segregation. To the extent the responsive records contain exempt information, the Department may assess a charge for the segregation and redaction of such exempt material. Please note, Mr. Stackerman 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, § 10(d)(iv)(4), lOA(c). Sincerely, ~a~ Supervisor of Records cc: Y oshio Stackerman