Gerard Sullivan v. Department of State Police - Crime Lab (SPR 20191904)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

September 27, 2019 SPR19/1904

Darina Griffin, Esq.

Legal Counsel

Department of State Police Crime Laboratory 124 Acton Street

Maynard, MA 01754

Dear Attorney Griffin:

I have received the petition of Gerard Sullivan appealing the response of the Department of State Police — Crime Laboratory to a request for public records. G, L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Sullivan requested a copy of: “any and all files j in the case of the Commonwealth v. Gerard Sullivan.”

Prior fee petition

The requested records were the subject of a fee petition submitted by the Department, and a determination by the Supervisor of Records (Supervisor) pertaining to the fee petition. See SPR19/1191 Determination of the Supervisor (June 20, 2019). In its petition, 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 asserted redaction is necessary under Exemptions (a), (c), and (f) of the Public Records Law.

The Department also stated 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 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 provided Mr. Sullivan with an estimate totally $560.50, which it detailed to explain the number of hours per task and the hourly rate of $25.00, The Department explained that the hourly rate is the lowest paid hourly rate of the individual who is capable of segregating and redacting the records. Accordingly, in my June 20" determination, I found the Department

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.. SPR19/1904 Page 2 September 27, 2019

had met its burden of specificity to explain how, given the nature of the records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv).

Current Appeal

The Department provided an August 26, 2019 response to Mr. Sullivan’s July 31* request that the Department waive the fee associated with compiling, copying, segregating and redacting the records responsive to the request. The Department’s August 26" letter states, “[i]n accordance with the response letter sent to you on June 12, 2019, the decision of the [Supervisor] dated June 20, 2019 that explains the hourly rate being assessed, the Department maintains that it is appropriate and necessary to assess a charge for the segregation and redaction of exempt

‘material. See SPR19/1191.” As a result of the Department’s decision not to waive the applicable fees for this request, Mr. Sullivan petitioned the Supervisor, and this appeal was opened.

Waiver of fees under the Public Records Law

In his petition, Mr. Sullivan indicates that he is indigent and asks this office to order the Department to waive all fees for his request.

Mr. Sullivan should be advised, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request. Under the Public Records Law, the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. See G. L. c. 66, § 10(d)(v); see also 950 C.M.R. 32.07(2)(k) (emphasis added).

Accordingly, whereas the Department has declined to waive the fees for Mr. Sullivan’s

request, and that this office cannot mandate that the Department do so, I consider this administrative appeal closed.

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, § 10(d)(iv)(4).

Sincerely,

Rebecca S. 10 Manes,

ray Supervisor of Records

cc: Gerard Sullivan