Ken Klippenstein v. Department of State Police - Commonwealth Fusion Center (SPR 20202163)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 16, 2020 SPR20/2163 Jason R. Stelmat, Privacy Officer Commonwealth Fusion Center Massachusetts State Police 124 Acton Street Maynard MA 01754 Dear Officer Stelmat: 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. G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). On October 25, 2020, Ken Klippenstein requested “records sufficient to show the titles of finished intelligence products and all corresponding metadata of all finished intelligence products produced or possessed by the Massachusetts Commonwealth Fusion Center (CFC) from January 1, 2019, through October 23, 2020.” Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from an agency to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the agency to comply with the request. G. L. c. 66, § 10(d)(iv). 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 or to charge in excess of $25 an hour for the provision of public 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 the request is not 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

Jason R. Stelmat SPR20/2163 Page 2 November 16, 2020 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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). Current Petition In its petition dated November 6, 2020, the Department requests “…approval to assess fees for costs associated with responding to a public records request submitted by Mr. Ken Klippenstein on October 25, 2020.” The Department provides “that it will expend an average of 10 minutes to conduct and review each search date. Accordingly, the good faith estimate is calculated at (13,240 minutes/60 minutes equals 220.67 hours). After subtracting the standard 4 hours the total is 216.67 hours at a rate of $25/hour which equals $5,416.75.” The Department indicates it “…communicated to Mr. Klippenstein its willingness to work with him to narrow the scope of his request given the large amount of potentially responsive documents.” The Department explains “[i]n order to compile the data being sought, the Department will be required to manually search two separate databases for daily entries for each date beginning January 1, 2019 until October 23, 2020. That will require 662 individual searches for each database (totaling 1,324 searches). After viewing the results for each day’s entries within each database, the Department will then be required to review each individual entry to determine if it is responsive to the request.” The Department states “….given our office’s and our agency’s collaboration with other state and federal agencies on criminal investigations and other matters regarding state and

Jason R. Stelmat SPR20/2163 Page 3 November 16, 2020 national security, the resulting documents will undoubtedly contain privileged and exempt information such as intelligence and investigative data, personnel, private, and security related information. 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. Accordingly, the information must be segregated and redacted from the records before the emails are produced to a third party such as the requestor.” The Department explains “[t]he Commonwealth Fusion Center is a law enforcement agency with various missions ranging from public safety and criminal justice to homeland security and emergency preparedness. As a result, a large percentage of CFC’s intelligence products involve highly sensitive matters.” Given these records may contain intelligence and investigative data, private and security related information, 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 Mr. Klippenstein 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, Mr. Klippenstein 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: Ken Klippenstein