Gerard Sullivan v. Department of State Police Crime Laboratory (SPR 20191191)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 20, 2019 SPR19/1191 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 Massachusetts Department of State Police Crime Lab (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, § I 0( c ). The Department received a request for records from Gerard Sullivan for "any and all files in the case of Commonwealth v. Gerard Sullivan." 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, § IO(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, § IO(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality's petition to allow the municipality 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, § I 0(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. SPR19/1191 Page2 June 20, 2019 The second prong of the test is whether the fee represents an actual and good faith representation by the municipality 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, § IO(d)(iv). See G. L. c. 66, § lO(d)(ii); 950 C.M.R. 32.06(4). 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, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4 )(g). Current Petition The Department states that it is necessary to perform redactions on the responsive records. In a June 12, 2019 letter, the Department explains "the records in question contain privileged or exempt information such as Criminal Offender Record Information, criminalistics and/DNA data, private information, and witness names and statements." The Department asserts responsive information is necessary to be redacted pursuant to Exemptions (a), (c), and (f). The Department states that they "identified the responsive records, which total approximately 489 pages of documents and approximately 593 photographs, as well as a crime scene video that is approximately 20 minutes in length. The Department will be required to

Darina Griffin, Esq. SPR19/1191 Page 3 June 20, 2019 review and redact exempt or otherwise privileged information from these records pursuant to the law. Given the volume of information the Department must review, this will impose an onerous burden on the Department which will have to devote limited resources to complete these tasks." The Department asserts that "[g]iven the volume of information the Department must review, the Department's good faith estimate of cost amounts to $560.50." The Department's fee estimate of $560.50 comprised of the Department's estimate that "it will take, on average, approximately three (3) minutes per page to review and make required redactions to the documents." The Department additionally estimates that "it can review approximately five (5) photographs per minute to determine if those are exempt by law from disclosure." Thus the total estimate is "24.45 hours to review and redact the documents pursuant to the law and 1.97 hours to review and redact the photographs pursuant to the law, for a total Of 26.42 hours. The first four (4) hours of work will not be charged. The remaining 22.42 hours charged at the statutory rate of $25 amounts to a total of $560.50." Conclusion In light of its petition, I find the Department has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d )(iv). 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 detailing why this 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 is to provide a response to the requestor within five business days ofreceipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Sullivan may appeal the Department's fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note 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, § I0(d)(iv)(4), lOA(c). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Gerard Sullivan