Roy Dumas v. Massachusetts State Police (SPR 20192438)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 23, 2019 SPR19/2438 Darina Griffin, Esq. Legal Counsel Massachusetts State Police Crime Laboratory 124 Acton Street Maynard, MA O1 7 54 Dear Attorney Griffin: I have received the petition of Roy Dumas appealing the response of the Department of State Police-Crime Lab (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Dumas requested "a oopy of all records relating to my DNA profile and its related data prepared under the Sudbury Crime Lab number 03-03908." The Department responded to his request including a fee estimate. Previous Petition This request was subject to a previous fee petition submitted by the Department. · SPR19/2154 Determination of the Supervisor of Records (October 29, 2019). In my October 29th dete1mination I found the Department met its burden to assess a fee for the segregation and redaction of exempt material. I indicated the Department must prepare a fee estimate, specifically, a detailed explanation to the requestor indicating why the estimated amount of time is necessary. See G. L. c. 66, § lO(d)(iv) (requiring the amount of the fee must be reasonable). Mr. Dumas objects to the Department's fee estimate. 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 fonn 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). 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. SPR19/2438 Page2 December 23, 2019 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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 ( 4) 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, § lO(d)(iv). See G. L. c. 66, § IO(d)(ii); 950 C.M.R. 32.06(4). In its October 21st fee estimate, the Department indicates "[g]iven that there are approximately 315 pages of documents which the Department must review, 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 infonnation the Department must review, the Department's good faith estimate of cost amounts to $293.75." The Department estimates "three (3) minutes per page totaling 15. 7 5 hours to review and redact the 315 pages ofresponsive documents. 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." The Department explains "[t]he fee estimate is based upon the good faith estimate that it will take on average three (3) minutes per page to review and redact the documents ... the materials you are seeking are subject to the exemptions found G.L. c. 4, §7, cl. 26 (a), (c) and (f)." The Department further explains [b]ecause the task at hand requires the review and redactions of laboratory materials that contain CORI, DNA, private, medical or other statutorily exempt materials, this analysis requires the attention of skilled and trained staff that are familiar

Darina Griffin, Esq. SPRl 9/2438 Page 3 December 23, 2019 with both the law and the nature of the laboratory files/ This work will be done by laboratory counsel in conjunction with qualified laboratory staff. .. this work exceeds $25 per hour." In Mr. Dumas's appeal he contends "the [D]epartment has overestimated the extent to which its claimed exemptions apply to the records." Mr. Dumas requests "the responsive records be records be reviewed by the Supervisor of Records in camera under 950 CMR 32.08(4)(a) .... " In camera inspection It is my determination that an in camera inspection of a representative sample of responsive records would facilitate a detennination as to the reasonableness of the fee estimate; specifically it would shed light on the extent to which the records contain exempt information. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198,206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose ofreview. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Order The Department must provide this office an unredacted copy of a representative sample of the responsive records for in camera inspection without delay. The Department may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record.

Darina Griffin, Esq. SPR19/2438 Page4 December 23, 2019 Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Roy Dumas