Jessica Lewis v. Department of State Police - Office of the Chief Legal Counsel (SPR 20200980)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 25, 2020 SPR20/0980 Anthony Serra, Esq. Staff Legal Counsel Office of Chief Legal Counsel Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Serra: 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 May 21, 2020, Jessica Lewis, on behalf of the American Civil Liberties Union of Massachusetts (ACLUM), requested five categories of records related to the solicitation of funds. On June 4, 2020, ACLUM modified category five of their request by narrowing the search terms. Subsequent to the opening of this petition, the ACLUM submitted a letter to this office on June 23, 2020 that addresses various portions of the Department’s petition. 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). 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 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

Anthony Serra, Esq. SPR20/0980 Page 2 June 25, 2020 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 19, 2020, the Department requests “to charge a fee for the cost of production.” The Department provides “that it will expend an average of 3 minutes to review each email. Accordingly, the good faith estimate is calculated at (6,300 minutes/60 minutes) 105 hours. After substracting the standard four hours the total is 101 hours at a rate of $25/hour which equals $2,625.” The Department notes it “is willing to work with the ACLUM 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 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

Anthony Serra, Esq. SPR20/0980 Page 3 June 25, 2020 Massachusetts State Polce. 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 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 2,100 potentially responsive eamils 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.” The Department indicates “in its June 17th response provided the ACLUM with a fee estimate with respect to this portion of the request.” The Department submitted their petition on June 19, 2020 more than ten business days after receipt of the request. In light of the fact the Department has not demonstrated it submitted a timely petition, permission to charge for time spent segregating or redacting responsive records cannot be granted. 950 C.M.R. 32.06(4)(g). However, this does not preclude the Department from charging for segregation and redaction that is required by law. This office encourages Ms. Lewis 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. Conclusion In light of the Department's petition, I find the Department may charge for segregation and redaction that is required by law. To the extent the responsive records contain the exempt information required by law as described above, the Department may assess a fee for segregation and redaction. Please note, Ms. Lewis 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).

Anthony Serra, Esq. SPR20/0980 Page 4 June 25, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Jessica Lewis