William McDonagh v. Department of Correction - Legal Division (SPR 20200024)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 15, 2020 SPR20/0024 Kate M. Silvia Director of Communications l)epartment of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Silvia: I have received the petition of William McDonagh appealing the response of the Department of Correction (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. McDonagh requested: "[t]he last two audits done and completed at the North Central Correctional Facility located at 500 Colony Rd. Gardner, MA 01140 ... also provide any follow up reports." Prior appeal On November 13, 2019, the Department provided Mr. McDonagh with a fee estimate. Unsatisfied with the fee estimate, Mr. McDonagh petitioned the Supervisor of Records (Supervisor), and the prior appeal, SPRI9/2355, was opened. The Department's November 13th fee estimate indicates, "$112.05 is necessary to process this production. This amount includes: (i) $12.05 for copies of24I pages at $0.05 per page and $100.00 for four hours of employee time at $25.00 an hour, excluding the first four hours." The Department explains "[t]his time is necessary for segregating and redacting records under Exemption (n) ... " In my December 5, 2019 determination, I ordered the Department to explain why eight (8) hours will be needed to produce the records. Specifically, the Department was ordered to describe how much time will be needed to search for the records versus how much time will be needed to segregate and/or redact. In addition, the Depa1iment was required to explain whether the redactions are required by law. G. L. c. 66, § lO(d)(iii) (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, § IO(d)(iv)); 950 C.M.R. 32.06(4)(g). See SPRI9/2355 Determination of the Supervisor (December 5, 2019). On December 13, 2019, the Department provided a response to my December 5th 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

Kate M. Silvia SPR20/0024 Page 2 January 15, 2020 administrative order. Unsatisfied with the Department's December 13th response, Mr. McDonagh petitioned the Supervisor again, and the current appeal was opened. · Waiver off ee In his petition, Mr. McDonagh contends he is entitled to a waiver of fees because "[ d]isclosure of a requested record is in the public interest; the request for records is not in the commercial interest of the requestor; or, the requestor lacks the financial ability to pay the full amount of the reasonable fee. I am indigent within the [Department]." See 950 C.M.R. 32.07(2)(k)(l-3). . Mr. McDonagh is advised that while a record custodian may waive applicable fees, under the criteria in 950 C.M.R. 32.07(2)(k)(l-3), the Supervisor has no authority to order that a record custodian do so. In addition, a ruling of indigency by a court of law is inapplicable to requests for records made pursuant to the Public Records Law. See G. L. c. 261, § 27A (defining indigency for civil, criminal or juvenile proceedings or appeals in any court); see also G. L. c. 261, § 27B (allowing any party to file with the clerk an affidavit of indigency and a request for a waiver, substitution or payment by the commonwealth of fees and costs upon a form prescribed by the chief justice of the supreme judicial court). The Public Records Law does not provide for an exception when the party requesting the records is indigent. See G. L. c. 66, § lO(a) (every person for whom a search of public records is made shall pay the actual expenses of such search); see also Fierro v. Hiscock, et al., Middlesex Superior Court, C.A. No. 96-7243 (1997) (indigent prisoner not entitled to receive records sought pursuant to the Public Records Law free of charge). Therefore, it is not within my enumerated powers to either require or approve such a waiver. Fee estimate 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. In its December 13th response, the Department indicates that the eight hours of employee time is necessary to redact the records. Your response states, "[t ]here are 241 pages which will take approximately 2 minutes per page to redact. These redactions fall under Exemption (n)." As I advised in my December 5th determination, a fee cannot 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, § lO(d)(iii); 950 C.M.R. 32.06(4). It is my understanding that the Department did not file a petition

Kate M. Silvia SPR20/0024 Page 3 January 15, 2020 and receive approval from the Supervisor to assess segregation and redaction fees for the exempt content under Exemption (n). Conclusion Accordingly, the Department is ordered to provide Mr. McDonagh a revised estimate in a manner consistent with the Public Records Law, its Regulations, and this order within 10 business days. A copy of a~y 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: William McDonagh