Beryl Lipton v. Department of State Police - Office of the Chief Legal Counsel (SPR 20201448)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 27, 2020 SPR20/1448 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 August 10, 2020, Beryl Lipton on behalf of Muckrock News, requested seven categories of records related to “documents created from January 2010 through the date this request is processed related to the agency's use of airborne tools, vehicles, and weapons: aerial drones, remotely piloted vehicles (RPVs), remotely piloted aircraft (RPAs), unmanned aerials (UAs), unmanned aerial vehicles (UAVs), and/or unmanned aerial systems (UASs)(hereinafter ‘drones’).” 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. 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. SPR20/1448 Page 2 August 27, 2020 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 August 21, 2020, the Department requests “approval to assess fees for costs associated with responding to a public records request submitted by Ms. Beryl Lipton on August 10, 2020…” The Department provides “that it will expend an average of 3 minutes to review each email and any attachments. Accordingly, the good faith estimate for reviewing emails is calculated at 32,896 hours (3 min. x 658,000 = 1, 974,000 min.; 1,974,000 min./60 min. equals 32,900 hours – 4 gratis hours= 32,896 hours) at a rate of $25/hour resulting in a total cost of $822,400.00. The good faith estimate for reviewing the flight logs is calculated at 41 hours (2 min. x 1250 = 5,000 min.; 5,000 min./60 min. = 41 hours) at a rate of $25/hour resulting in a total cost of $ 1,025.” The Department total fee estimate amounts to $823,425.00. The Department indicates “[g]iven that there are 658,000 potentially responsive emails and approximately 1,250 flight logs the Department must review and redact, this will impose an

Anthony Serra, Esq. SPR20/1448 Page 3 August 27, 2020 onerous burden on the Department, which will have to devote limited resources to review and redact these records.” The Department states “…given our office’s and our agencies’ collaboration with other state and federal agencies on criminal investigations and other matters regarding state and national security, 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. 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 an exemption applies.” The Department further explains “[i]n addition, after consultation with the unit responsible for drone training and operation, it has been determined that fulfilling this request will also require a significant time commitment to identify and review the additional documents sought as part of your request. In order to fulfill this request, the Department will need to conduct an extensive search of its records. As some of these records are not stored electronically, Department members may have to search through the records by hand to identify responsive documents. Given the broad range of records sought, this request is likely to produce thousands of pages of responsive documents, including but not limited to grant documents, insurance records, maintenance records, contracts, inventories, log data, policies, and training records.” Given these records may contain intelligence and 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. This office encourages Ms. Lipton 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 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.

Anthony Serra, Esq. SPR20/1448 Page 4 August 27, 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). Specifically, the Department must clarify the time being allocated to both segregation and redaction, as well as provide more information as why the indicated amount of time is necessary for each. The Department is ordered to provide a response to Ms. Lipton within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Lipton may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Given the scope of the request, the parties are encouraged to communicate further to better enable the Department to provide the records efficiently and affordably. Please note, Ms. Lipton 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: Beryl Lipton