David Zuares v. Executive Office of Public Safety and Security - State 911 Department (SPR 20201796)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 30, 2020 SPR20/1796 Dennis J. Kirwan, Esq. General Counsel State 911 Department 151 Campanelli Drive, Suite A Middleborough, MA 02346 Dear Attorney Kirwan: I have received your petition on behalf of the State 911 Department (Department) seeking an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor, Attorney David Zuares. Id. In a letter dated September 4, 2020, Attorney Zuares requested, “all 911 recordings (or transcripts thereof) produced by your agency in the past twenty-four months in response to a public records request, appeal to the Supervisor, or Court order adjudicating a dispute arising from your agency’s response to a public record request.” Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. 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

Dennis J. Kirwan, Esq. SPR20/1796 Page 2 September 30, 2020 G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Petitions 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 a municipality’s petition to allow the municipality 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. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality 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

Dennis J. Kirwan, Esq. SPR20/1796 Page 3 September 30, 2020 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 CMR 32.06(4). Current Petition In its petition dated September 23, 2020, the Department seeks permission to charge for time spent segregating or redacting responsive records, as well as “an extension of time to reply of 60 days following receipt of payment from the requester, pursuant to 950 CMR 32.06(4)(e).” The Department indicates it has “identified 76 records responsive to this request, and [has] determined that it will take 2,660 minutes (44.33 hours) to segregate, apply exemptions, redact and produce these records.” Although the Department states it has “identified 76 records responsive to this request, and [has] determined that it will take 2,660 minutes (44.33 hours) to segregate, apply exemptions, redact and produce these records,” it has not provided information regarding what records it intends to produce and why such records are likely to contain exempt information that has not already been redacted. The Department explains “[t]he lowest paid employee capable of responding to this request makes more than the statutory limit of $25.00 per hour. The cost of producing these records would be 40.33 hours (44.33 – less the first 4 hours) times $25.00 per hour – a total cost of $1,008.33.” Further, the Department notes “the employee capable of completing this task is responsible for many other duties, and responding to public records requests encompasses only about 20 percent of the employee’s duties.” The Department notes “[t]his request will take approximately 60 days to complete, given the day to day duties assigned to the employee.” The September 23rd petition states “[t]he records sought took a great deal of time to locate, and will take a great deal of time and resources to segregate, redact and produce. The State 911 Department will also need to examine the records to determine whether any exemptions to the public records law apply to each and every record.”

Dennis J. Kirwan, Esq. SPR20/1796 Page 4 September 30, 2020 Conclusion I find the Department has established cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the Department an extension of 5 business days to furnish copies of records responsive to Attorney Zuares request. See G. L. c. 66, § 10(c). To the extent possible, the Department must provide responsive records on a rolling basis. With respect to the Department’s petition to assess fees, I find the Department has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Please note, however, this does not preclude the Department from charging for segregation and redaction that is required by law. 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 the estimated amount of time is necessary and how the redactions are required by law. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Department must provide a response to Attorney Zuares within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Attorney Zuares may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Further, this office encourages Attorney Zuares 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 or 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 or municipality 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. Please note, Attorney Zuares 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: David Zuares, Esq.