Mac Hudson v. Department of Correction - Legal Division (SPR 20201647)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 24, 2020 SPR20/1647 Kate M. Silvia Director of Communications Department of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Mac Hudson appealing the response of the Department of Correction (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Hudson requested records related to his “proposal to implement the African Heritage Coalition Program.” The Department responded on July 7, 2020, providing a fee estimate of $171.30 for the production of responsive records. Unsatisfied with this response, Mr. Hudson petitioned this office and this appeal, SPR20/1647, was opened as a result. Fee estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). 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

Kate M. Silvia SPR20/1647 Page 2 September 24, 2020 The Department’s July 7, 2020 Estimate In its July 7th fee estimate, the Department estimates that it will require 10 hours to produce the responsive records, for a total cost, including copying fees and postage, of $171.30. The Department additionally estimate that it will produce 262 pages of records. Fees to search for, compile, segregate, redact or reproduce responsive records In its response, the Department estimates that it will requires 10 hours of “Search, Segregation and Redaction time.” Despite the Department’s response, it is unclear what tasks the intends to perform, and how it arrived at the 10 hour figure. The Department must provide further information regarding this matter. If the Department intends to charge for redaction time, it must demonstrate that it may permissibly charge for time spent redacting the records. See 950 C.M.R. 32.07(2)(m)(4). Please note that under the Public Records Law, a fee may 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). Employee time The Department’s estimate indicates that it is charging $25 per hour for time spent responding to the request. However, the Department does not identify which employees it expects to perform the work involved in responding to the request. It is therefore unclear whether the Department calculated its estimate using the hourly rate of the lowest-paid employee capable of performing the work. See 950 C.M.R. 32.07(2)(i). The Department must clarify this matter. Waiver of fees In his appeal petition, Mr. Hudson requests that the Department waive the fees associated with the production of these records because the records pertain to his program request to state officials. Please be advised the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request. Under the Public Records Law, the records access officer may waive or reduce the amount of any fee charged upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. See G. L. c. 66, § l0(d)(v); see also 950 C.M.R. 32.07(2)(k).

Kate M. Silvia SPR20/1647 Page 3 September 24, 2020 Conclusion Accordingly, the Department is ordered to provide Mr. Hudson with a response prepared in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Mac Hudson