Roy Dumas v. Massachusetts State Police (SPR 20192154)

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

Rebecca S, Murray Supervisor of Records

October 29, 2019 SPR19/2154

Darina Griffin, Esq. Legal Counsel Massachusetts Department of State Police Crime Laboratory 124 Acton Street Maynard, MA 01754

Dear Attorney Griffin:

[have received your petition on behalf of the Massachusetts Department of State Police Crime Laboratory (Department) requesting permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv); see also 950 C.MLR. 32.06(4). In a letter dated September 21, 2019, stamped as received by the Chief Legal Counsel of the State Police on October 4, 2019, Roy Dumas requested “a copy of all records relating to my DNA profile and its related data prepared under the Sudbury Crime Lab file number 03-03908.”

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, § 10(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 char ge 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, § 10(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

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. SPR19/2154 October 29, 2019

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 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 ofa public record. ~ G. L. c. 66, § 10(d)q).

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, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4),

Current petition

In its petition dated October 21, 2019, the Department requests “approval to assess fees associated with responding to a public records request submitted by Mr. Roy Dumas.” The Department indicates “[a] cursory search of the Department’s records revealed approximately 315 pages worth of documents.” The Department states “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...specifically exempt pursuant to G.L. c. 4, cl. 26 (a), (c) and (f)...”

The Department explains the “laboratory files requested here include records and data compiled by a Massachusetts criminal justice agency, which concern identifiable individuals and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, and other judicial proceedings. ..the instant request relates to a criminal case, the laboratory case files contains names and other Criminal Offender Records Information (““CORI”)...protected from disclosure and therefore will require redaction.”

Further, the Department explains “a perfunctory search reveals that there is criminalistics file and a DNA file associated with the case, which contains criminalistics, and genetic / DNA testing information...specifically exempt from disclosure under the provisions of MGL c. 22E, §9,..the Department is required by law to review and redact the type of DNA testing records that are exempted from disclosure by law...”

Darina Griffin, Esq. ~ SPR19/2154 October 29, 2019 .

The Department indicates “the documents Mr. Roy is seeking also contain witness information and statements” which “would also have to be redacted pursuant to the privacy exemption G.L. c. 4, §7, cl. 26 (c) and (f).” Further, the Department states “the case files includes potential medical information that is subject to the exemption G.L. c. 4, §7, cl. 26 (c).”

_ The Department asserts, “[g]iven the numerous pages of records, which the Department must assemble, and review, such a task will impose an onerous burden on the Department, which will have to devote limited resources to review and redact these records. “ The Department estimates “three (3) minutes per page to review and make required redactions.” The Department indicates it will take “15.75 hours to review and redact the documents pursuant to the law. The first four (4) hours of work will not-be charged. The remaining 11.75 hours charged at a statutory rate of $25 amounts to a total of $293.75,”

Given these records may contain CORI information, criminalistics/DNA data, and witness 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.

When preparing a fee estimate for the provision of the requested records, the Department is advised to provide a detailed explanation to the requestor indicating why this estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Department shall provide a response to Mr. Dumas within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Dumas may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1).

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, § 10A.

Sincer Rllenca.

Kalhecca. S. Murray Supervisor of Records cc: Roy Dumas