Ethan Hansen v. Department of State Police - Office of the Chief Legal Counsel (SPR 20201328)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 13, 2020 SPR20/1328 Joshua D. Reilly, Esq. Office of the Chief Legal Counsel Massachusetts Department State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Reilly: I have received your petition on behalf of the Massachusetts Department of State Police (Department) requesting permission for a waiver of statutory limits on fees that may be assessed in responding to a request. G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). In a letter dated July 24, 2020, Ethan Hansen requested, “all information/documents related to the New England Aeroscope MESH system.” 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

Joshua D. Reilly, Esq. SPR20/1328 Page 2 August 13, 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 (4) 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 August 7, 2020 petition, the Department “petitions the Supervisor of Public Records for approval to assess fees for costs associated with responding to a public records request submitted by Mr. Ethan Hansen.” The Department notes “that there are 1,101 potentially responsive emails that 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 these records.” The Department states, “[t]he 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 and records may relate to highly sensitive matters.”

Joshua D. Reilly, Esq. SPR20/1328 Page 3 August 13, 2020 The Department posits “the resulting records undoubtedly contain privileged and exempt information such as 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.” The Department notes, “[t]hese 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. Accordingly, the information must be segregated and redacted from the records before the records are produced to a third party such as the requestor.” I find the Department has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10( d)(iv). Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition, the Department is permitted to charge for time spent segregating and redacting the requested records. When preparing a fee estimate for the provision of the requested records the Department is advised to provide a detailed explanation to the requestor detailing why the 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 must also provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. The Department shall provide a response to Mr. Hansen within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Hansen may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note the requestor 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), l0A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Ethan Hansen