Emma Best v. Department of State Police - Legal Office (SPR 20200945)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 18, 2020 SPR20/0945 Keith A. Paquette, Esq. Legal Counsel Office of Chief Legal Counsel Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Paquette: 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 under G. L. 66, § 10(d)(iv). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). On June 8, 2020, Emma Best, on behalf of Muckrock, requested two categories of records: 1. “Emails, letters, and memos to or from police/law enforcement unions, the National Guard, or federal officials between May 1, 2020 and the present.” 2. “I also request copies of emails containing any of the following: ‘protest’, ‘protests’, ‘Black Lives Matter’, ‘BLM’, ‘riot’, ‘riots’, ‘antifa’, ‘antifascist’, ‘anti-fascist’, or ‘militia’.” Petition to Assess Fees 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 (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). 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). 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

Keith A. Paquette, Esq. SPR20/0945 Page 2 June 18, 2020 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. 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 this request was not made 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 redaction or segregation; 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. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). 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, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). Current Petition In its petition dated June 12, 2020, the Department requests “...a fees estimate for costs associated with responding to [the] request.” The Department provides “…that it will expend an average of three (3) minutes to review each item. Accordingly, the good faith estimate is calculated at (675,000 minutes/60 minutes) 11,250 hours. After substracting the standard four hours the total is 11,246 hours at a rate of $25/hour which equals $281,150.” The Department notes it “is willing to work with [the requestor] to narrow [the] request in both time and scope.” The Department states “the resulting emails undoubtedly contain privileged and exempt information such as CORI data, intelligence and investigative data, personnel, private, and

Keith A. Paquette, Esq. SPR20/0945 Page 3 June 18, 2020 security related information, as well as information related solely to internal personnel rules and practices of government necessary to withhold to ensure the proper performance of the Massachusetts State Police. These categories of information are specifically exempt pursuant to G.L. c. 4, §7, cl. 26 (a), (b), (c), (f), and/or (n) and are not subject to public disclosure.” The Department indicates “an email search was conducted utilizing the participant search terms ‘@msptrooper.org,’ ‘.mil,’ and ‘.gov’ from 5-1-2020 to 6-10-2020. This resulted in approximately 72,000 items, for which the majority of the items include emails, duplicate emails, attachments, and files potentially responsive to your request…[w]ith respect to your second request listed above, you failed to include a specific time frame for the search. However, the same time period as referenced above in your first request was utilized for the email search, along with the search terms you requested above. This resulted in approximately 153,000 items…” The Department explains “the information must be segregated and redacted from the email records before the emails are produced…[a]s a state agency with the responsibility for maintaining extensive confidential information, the Masssachusetts State Police has an obligation to ensure proper procedures are maintained to prevent the dissemination of information which is protected from disclosure by law…[m]oreover, a review of these emails would be required to determine if the security exemption applies.” The Department further explains “[g]iven that there are approximately 225,000 (72,000+153,000) potentially responsive items 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 the records.” Given these records may contain investigative data, private and security related information, as well as information related to internal personnel rules, 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 the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the Department may assess a fee for segregation and redaction. This office encourages Ms. Best and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(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 fee estimate by the Department must be in compliance with this determination, the Public Records Law, and its Access Regulations.

Keith A. Paquette, Esq. SPR20/0945 Page 4 June 18, 2020 Please note, Ms. Best 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, § 10(d)(iv)(4), 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Emma Best