Alan R. Gaudreau v. Bristol County District Attorney's Office (SPR 20202013)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 2, 2020 SPR20/2013 Mary Lee, Esq. Records Access Officer Bristol County District Attorney’s Office 888 Purchase Street New Bedford, MA 02740 Dear Attorney Lee: I have received the petition of Alan R. Gaudreau appealing the response of the Bristol County District Attorney’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on September 15, 2020, Mr. Gaudreau requested the following records: [1.] copies of all weekly or biweekly paychecks by the Commonwealth to [a named] First Assistant from January 1, 2007 through December 31, 2007. [2.] any assigned credit-debit card transactions by [a named First Assistant] that he was assigned in his official capacity from January 1, 2007 through December 31, 2007. [3.] copies of any "bonus checks or other checks or drug forfeiture funds [to] [a named First Assistant] from January 1, 2007 through December 31, 2007. [4.] copy of the report of funds deposited into special law enforcement trust fund that were used in fiscal years 2007 through 2008 and the balance as of January 1, 2007. [5.] list of private attorneys participating in any volunteer prosecutor program, name and address of law firm and the total number of personnel from said law firm, duties performed by the personnel and benefits and cost savings associated with the program. [6.] all paid salaries authorized by [a named] District Attorneys] for years 2007 and 2008and any formal report to the state legislature on this subject. [7.] copies of any funds used by the Office detailing the … use of drug forfeiture fund collected … which said report of 2016 through 2019 showing (a) amount of funds deposited into the Office’s special law enforcement trust fund (b) how the funds were used in those fiscal years (c) balance of trust fund as of January 1, 2020. Unsatisfied with the Office’s response, Mr. Gaudreau appealed and SPR20/2013 was opened as a result. 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

Mary Lee, Esq. SPR20/2013 Page 2 November 2, 2020 The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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). 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)(iii); 950 C.M.R. 32.06(4). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). The Office’s November 2nd Fee Estimate In its November 2nd response, the Office requested a payment of $200.00 for the estimated fee to produce the responsive records. The Office stated, “[i]tems from paragraph #4 … require payment of $25 and items from paragraph #6 … require a payment of $175.”

Mary Lee, Esq. SPR20/2013 Page 3 November 2, 2020 Although the Office indicates that the amount of time is 7 hours for item #6 and apparently one hour for item #4, the Office has not stated whether the employee search and segregation time quoted above is charged at the hourly rate of the lowest paid person capable of compiling the responsive records, in accordance with 950 CMR 32.07(2)(i). Such hourly rate shall not exceed $25.00/hour unless otherwise authorized by the Supervisor of Records. Further, the Office’s fee estimate has not explained with specificity why the indicated amount of time is necessary for producing the requested records. The Office must break down how much time is needed to search for records and how much time is needed to segregate and/or redact. Additionally, the Office must indicate which tasks are required to complete its search and segregation of the records. If the Office is assessing fees for segregation and redaction, it must indicate whether such redaction is required by law. See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). Conclusion Accordingly, the Office is ordered to provide Mr. Gaudreau with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations as soon as is practicable. 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: Alan R. Gaudreau