Allison Jarmanning v. Massachusetts Department of Transportation (SPR 20191968)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 10, 2019 SPR19/1968 William J. Doyle, Esq. Records Access Officer Department of Transportation 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Doyle: .I have received the petition of Allison Jarmanning of WBUR appealing the response of the Department of Transportation (Depaiiment) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on July 12, 2019, Ms. Jarmanning requested the following records: "[l] A list, database or other records indicating how many CDLs are suspended each calendar year in Massachusetts. [2] A list, database or other records indicating how many CDLs are suspended in Massachusetts each calendar year for out-of-state violations. [3] A list, database or other records indicating how many of those suspensions are triggered automatically via the federal CDLIS (ie, without the suspension information needing to be entered manually) . [4 ] A list, database or other recotds regarding CDL suspension information sent to Massachusetts via the American Association of Motor Vehicle Administrators messaging system, including when the message was received, when the message was acted on (such as, suspension entered into the Mass. system), and how (automatic vs. manually)." Previous petition The requested records were the subject of a previous fee petition. See SPRl 9/1390 Determination of the Supervisor of Records (July 19, 2019). In my July 19th determination, I found that the Depaiiment had met its burden to assess a fee for time spent segregating and redacting records. Subsequently, the Department provided a fee estimate on September 24, 2019. Objecting to the fees, Ms. Jarmanning petitioned this office and this appeal, SPRl 9/1968, was opened as a result. While this appeal was pending the Depaitment provided a supplemental 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

William J. Doyle, Esq. SPR19/1968 Page 2 October 10, 2019 response dated October 4, 2019. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507,511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's September 241 response " In its September 24, 2019 response, the Department indicates that portions of the records requested" ... reside in the Registry of Motor Vehicles' ATLAS system, a comprehensive and . complex system comprised of many separate databases. As such, retrieval of targeted information must be done through the use of developers skilled in the ability to retrieve this data." The Department explains the process for retrieving and/or producing responsive records as follows:" ... U] [records] must first be analyzed to formulate the appropriate searches that will be needed; [2] developers then write the necessary queries to submit for processing and formatting. [3] [After completion of step 2,] a sample of the responsive records are reviewed and· quality-checked to ensure that the data corresponds to both the development guidelines, as well as being responsive to the original request[;] [and] [4] the records are then transmitted to the appropriate personnel for any applicable exemptions (i.e., mandated redactions pursuant to the Drivers Privacy Protection Act)." Based on the foregoing the Department provided a cost estimate. Current appeal In her appeal petition, Ms. Jarmanning contends that" ... [the Department] did not provide a fee estimate or records to me in the amount of time required by law. ... [The Department] did receive approval from the Supervisor to assess a fee, on July 19 (SPR19/1390) but did not receive any extension of time. I did not receive a fee estimate until Sept. 24, 61 business days after my request and 46 business days since receiving Supervisor approval to

William J. Doyle, Esq. SPR19/1968 Page 3 October 10, 2019 assess fees." The Department objects to this statement in its October 4th supplemental response. The Depaiiment asserts that after filing a timely petition to assess fees, it" ... sent [Ms. Jarmanning] a timely initial response as follows, '[Y]ou may i1ave already received ( or will shmily) our Petition to the Supervisor of Records relative to your request. In addition, please be advised that we are currently in the process of compiling the records you have requested, as well as determining if the completion of your request is estimated to take more than four (4) hours. If such a determination is made, we will provide a cost estimate to you and will await your fmiher instructions relative to payment, modification/clarification of your request, withdrawal, or other mutually-agreeable arrangements for production.'" The Department futiher states that it" ... does not disagree with the position that 'filing a petition does not affect ... an initial response to a requester within ten business days ... ,' but [the Department] did not simply 'Cc' [Ms. Jarmanning] with the Petition but, rather, sent a separate response that also indicated that 1) records we~e being compiled, 2) the work may take more than four hours, 3) a cost estimate would be provided, if necessary, and 4) the requester would have several options based on any cost estimate." As a result, the Depatiment asserts that its" ... response was timely as it was within the required time, and [Ms. Jarmanning's] appeal · alleging an untimely response should be denied." G. L. c. 66, § lO(e) provides that "[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b)." The Depaiiment's July 12th initial response, among other things advised Ms. Jarmanning that the Department was in the process of compiling the records and a fee estimate would be provided, if necessary, to produce responsive records. However, despite this response, I find that it is unclear whether the Department complied with G. L. c. 66, § 10( e ). Specifically, the Department must demonstrate whether it provided a response to Ms. Jarmanning's request under G. L. c. 66, § lO(b) within 10 business days of receipt of the request. See G. L. c. 66, § lO(b )(i)-(ix) (outlining the requirements of a records custodian's written response to a requestor). Fmiher, 950 C.M.R. 32.06(4)(h)(4) provides that "a records access officer shall respond to a request within five bush1.ess days of receipt of the Supervisor's determination regarding a petition submitted under 950 C.M.R. 32.06(4)(g)." See SPR19/1390. Consequently, where a determination was issued on July 19, 2019, it is unclear how the Department's September 24th cost estimate was timely or in compliance with the Public Records Law. The Department must clarify this matter. Reasonableness off ee estimate; segregation and redaction time In the event that the Department can demonstrate that it complied with G. L. c. 66, § lO(e) and 950 C.M.R. 32.06(4)(h)(4), it is necessary to analyze the reasonableness of the fee estimate.

William J. Doyle, Esq. SPR19/1968 Page4 October 10, 2019 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, § 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 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). In its September 24th response, the Depmiment provided a cost estimate of $1,100, which is comprised of the following: "[l] First Four (4) Hours -N/C[;] [2] Request #3: Includes programing time and quality control - 20 Hours x $25/Hr = $500.00[;] [3] Request #4: Includes programing time and quality control - 24 Hours x $25/Hr = $600.00[;] [4] Copies ($.05/page, b&w) -NI A[;] [5] Storage Retrieval (if outside vendor)= 1st Box ($14.00); Ea. Additional Box ($3.00 ea.) - 1 x $14.00 = N/A[;] Total Due= $1,100.00." Based on its response, although the Department indicates that it would have to retrieve certain records through the use of developers skilled in the ability to retrieve data, I find the Department must explain why the estimated amount of time will be needed to produce the records. Specifically, it must describe why it requires 44 hours to produce records responsive to items 3 and 4. The Department must provide additional information regarding what these processes entail. It is also uncertain how many hours were allocated to search, compile, segregate and/or redact the records. Therefore, the Depmiment must clarify these issues. Records responsive to items I & 2 Based on the Depmiment's cost estimate, it appears it is not assessing a fee for items 1 & 2 of Ms. Jarmanning's request. Consequently, if the Department is not assessing a fee, I find the Department must provide responsive records without unreasonable delay. See G. L. c. 66, § lO(a).

William J. Doyle, Esq. SPR19/1968 Page 5 October 10, 2019 Conclusion Accordingly, the Department is ordered to provide Ms. Jarmanning with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: Allison Jarmanning