David Jeswald v. Massachusetts Department of State Police (SPR 20202271)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 24, 2020 SPR20/2271 Christine Dowling, Esq. Staff Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Dowling: I have received your petition on behalf of the Department of State Police (Department) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c), (d)(iv). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor. Id. Specifically, Mr. David Jeswald requested several categories of records concerning a certain Trooper. This petition regards the request for “. . . all citations and police reports mentioning [an identified Trooper].” 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 a municipality’s petition to allow the municipality 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. 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 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

Christine Dowling, Esq. SPR20/2271 Page 2 November 24, 2020 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 (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). Current petition In its petition dated November 19, 2020, the Department indicates that with respect to the above referenced request, it has identified “. . . 292 citations . . . and 84 arrest/incident/crash reports for which [the identified Trooper] was either the primary or secondary officer.” The Department cites Exemptions (a) and (c), and explains that “[a]rrest/incident/crash reports contain the following categories of information (among others): name, date of birth, social security number, license number, address, mother’s/father’s information, citizenship, charges, vehicle information, and a property inventory. Arrest reports also include a detailed narrative of the offense, which includes witness identification and statements and often includes repetition of some of the previously-identified categories of information.” The Department explains that “[d]epending on the nature of the offense, arrest reports can total numerous pages in length. Because these reports contain personal identifying information . . ., information related to ongoing criminal investigations (e.g., witness identification and statements), and information that is protected by M.G.L. c. 6, § 172, the Criminal Offender Record Information (‘CORI’) statute (e.g., the charges to be filed against the arrestee), these arrest reports therefore require redaction under the law. The Department has estimate[d] that it would take approximately five (5) minutes to review each arrest/incident/crash report and make the redactions required by law.” The Department, citing the above referenced exemptions, also states that “[c]itations include the . . . name, address, date of birth, license number, vehicle information, dates of the

Christine Dowling, Esq. SPR20/2271 Page 3 November 24, 2020 offense, and specification of the civil or criminal offenses that are to issue against the offender. Because these citations contain personal identifying information (e.g., date of birth, license number) and information that is protected by M.G.L. c. 6, § 172, the Criminal Offender Record Information (‘CORI’) statute . . ., these arrest reports therefore require redaction under the law. The Department has estimated that it would take approximately one (1) minute to review each citation and make the redactions required by law.” The Department posits that “[a]s a state agency with the responsibility for maintaining extensive confidential information, [it] has an obligation to ensure proper procedures are maintained to prevent the dissemination of information which is protected from disclosure by law. Fulfilling such an obligation requires a careful review and segregation of records intended for disclosure.” As such, the Department “. . . estimates that it would take approximately 11.9 hours to complete this portion of the request, resulting in a cost of $196.66 ([292 citations x 1 minute] + [84 arrest/incident/crash reports x 5 minutes] / 11.9 hours – 4 hours / 7.9 hours x $25 = $196.66).” I find the Department has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). In an email correspondence dated November 20, 2020, Mr. Jeswald states “I would also like to request a waiver of all fees in that the disclosure of the requested information is in the public interest and will contribute significantly to the public’s understanding of the Commonwealth of Massachusetts’ public safety and security. This information is not being sought for commercial purposes. The public deserves to know if this public entity is unbiased, fair, and holds accountability. . . .” Based on Mr. Jeswald’s arguments, it is unclear how the responsive records concerning a particular identified Trooper would reveal systemic biases within the Department. Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition, the Department is permitted to charge for time spent segregating and redacting the requested records. When preparing a fee estimate for the provision of the requested records the Department is advised to provide a detailed explanation to the requestor detailing why the estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Department must also provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. The Department shall provide a response to Mr. Jeswald within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Jeswald may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1).

Christine Dowling, Esq. SPR20/2271 Page 4 November 24, 2020 Please note the requestor 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), l0A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: David Jeswald