Emma Best v. Massachusetts Department of State Police (SPR 20201915)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 14, 2020 SPR20/1915 Joshua D. Reilly, Esq. Staff Counsel Office of Chief Legal Counsel Massachusetts 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 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 September 22, 2020, Emma Best of MuckRock News requested “[c]opies of Memorandums of Understanding (MOUs), Memorandums of Agreement (MOAs), Non-Disclosure Agreements (NDAs) and other coordination, cooperation, or other resource or information sharing arrangements with federal, state or local agencies, specifically including but not limited to law enforcement agencies” from “January 1, 2012 and the date of processing of this request.” 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

Joshua D. Reilly, Esq. SPR20/1915 Page 2 October 14, 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 October 5, 2020, the Department requests “…approval to assess fees for costs associated with responding to a public records request submitted by Ms. Emma Best via MuckRock News...” The Department provides “…it will expend an average of 60 seconds to review each page. Accordingly, the good faith estimate for reviewing emails is calculated at ( 1 min x 2885 equals 2885 minutes/60 minutes equals 48 hours – 4 gratis hours=44 hours) at a rate of $25/hour resulting in a total cost of $1,100.00.” The Department indicates a “…there are more than 200 potentially responsive documents and over 2885 pages 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 explains “…given our office’s and our agencies’ collaboration with other state and federal agencies on criminal investigations and other matters regarding state and

Joshua D. Reilly, Esq. SPR20/1915 Page 3 October 14, 2020 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 further explains “…the information must be segregated and redacted from the records before the records are produced to a third party such as the requestor. 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..…[m]oreover, a review of these emails would be required to determine if an exemption applies.” 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. 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. This office encourages Ms. Best 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 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). Any fee estimate by the Department must be in compliance with this determination, the Public Records Law, and its Access Regulations. Please note, Ms. Best 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).

Joshua D. Reilly, Esq. SPR20/1915 Page 4 October 14, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Emma Best