Jeannette Hinkle v. Department of State Police - Office of the Chief Legal Counsel (SPR 20201153)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 16, 2020 SPR20/1153 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 June 26, 2020, Jeannnette Hinkle of Gannett New England requested several categories of records pertaining to “demographic data from police motor vehicle stops conducted by the Massachusetts State Police from January 1, 2014 to June 26, 2020.” 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 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. 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. SPR20/1153 Page 2 July 16, 2020 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 July 10, 2020, the Department requests “to charge a fee for the cost of production...” The Department provides “[g]iven the volume of information requiring review, the Department’s good faith estimate of cost amounts to $1,877,775 (75,115 hours – 4 hours x $25)…the Department estimates, conservatively and in good faith, that for the requested time frame there would be approximately 1,502,304 citations that would need to be pulled, reviewed, and redacted. The Department estimates that this process would take (1,502,304 x 3 minutes/60) 75,115 hours to do this.” The Department notes it “has reached out to the requestor numerous times to the requestor to no avail regarding narrowing this request due to the high cost of this response.” The Department states “[g]iven that the Massachusetts State Police is a law enforcement agency with various missions ranging from public safety and criminal justice to homeland security and emergency preparedness, a large percentage of Department reports may relate to highly sensitive matters. Further, given our office’s and our agencies’ collaboration with other

Anthony Serra, Esq. SPR20/1153 Page 3 July 16, 2020 state and federal agencies on criminal investigations and other matters regarding state and national security, the resulting reports 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 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 explains “the information must be segregated and redacted from the reports before they are produced to a third party. As a state agency with the responsibility for maintaining extensive confidential information, the Massachusetts State Police has an obligation to ensure proper procedures are maintained to prevent the dissemination of information which is protected from disclosure by law.” Given the public interest served by limiting the cost of public access to the requested records, the Department has not met its burden to explain that the fee represents an actual and good faith representation by the agency to comply with the request. See G. L. c. 66, § 10(d)(iv). Though the Department has shown that the request could not be prudently completed without redaction or segregation, the Department has not shown the fee is necessary; reasonable; or that the fee is not designed to limit, deter or prevent access to the requested records. Id. Therefore, permission to charge for time spent segregating or redacting responsive records cannot be granted. However, this does not preclude the Department from charging for segregation and redaction that is required by law. This office encourages Ms. Hinkle 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). 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, the Department may assess a fee for segregation and redaction.

Anthony Serra, Esq. SPR20/1153 Page 4 July 16, 2020 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 is to provide a response to Ms. Hinkle within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Hinkle may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Jeannette Hinkle