Beryl Lipton v. Massachusetts State Police (SPR 20192113)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Super\•lsor ofR ecords October 22, 2019 SPR19/2113 Jason R. Stelmat Privacy Officer Massachusetts Department of State Police 124 Acton Street Maynard MA 01754 Dear Officer Stelmat: I have received your petition on behalf of the Massachusetts Department of State Police (Department) requesting permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § lO(d)(iv); see also 950 C.M.R. 32.06(4). On September 30, 2019, Beryl Lipton of MuckRock News requested eight categories ofrecords related to "the solicitation, acquisition, and use of face recognition technology and related software and services." 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, § 10( 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 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 One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Jason R. Stelmat SPR19/2113 October 22, 2019 redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § lO(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 October 15, 2019, the Department seeks "approval to assess fees for costs associated with responding to a public records request submitted by Ms. Beryl Lipton on September 20, 2019." The Department indicates a search for the lastcategory ofrecords regarding the use and function of the facial recognition technology, yielded "a total of 62,049 emails" using the search terms "facial recognition" and "face match." The Department explains "[b] ecause there is no way to determine which of these emails simply contain a common phrase in popular use, which of them constitute 'use and function' pursuant to the request, and which of the latter group contain material exempt from disclosure, the Department is seeking to assess fees in order to adequately respond to the request." The Depa1iment notes they have "communicated with the requestor that we would be willing to work with them to narrow the scope of their request given the large amount of potentially responsive records." The Department cites exemption (a), (b), (c), (f), and/or (n) as "information that must be segregated and redacted email records before the emails are produced to a third party such as the requestor." The Department explains "given our office's and our agency's collaboration with other state and federal agencies on criminal investigations and other matters regarding state and national security, the resulting emails undoubtedly contain privileged and exempt information, as well as information related solely to the internal personnel rules and practices necessary to withhold to ensure the performance of the Massachusetts State Police."

Jason R. Stelmat SPR19/2113 October 22, 2019 The Department further explains "[s]ince there are 62,049 emails which the Department must review and redact, this will impose an onerous burden on the Department which will have to devote limited resources to review and redact these records. Given the volume of information requiring review, the Department's good faith estimate cost amounts to $77,461.25." The Department estimates "it will expend an average of 3 minutes to review each email" and "[a]fter subtracting the standard 4 hours the total is 3098.45 hours at a rate of $25/hour which equals $77, 461. 25" Given these records may contain information relating to CORI, and security related information, 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. 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 as described above, the Department may assess a charge for the segregation and redaction of such exempt material. This office encourages Ms. Lipton and the Depaiiment 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. 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. Sincerely, ~r~ Supervisor of Records cc: Beryl Lipton