Joshua Dankoff v. Department of State Police - Office of the Chief Legal Counsel (SPR 20210138)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 29, 2021 SPR21/0138 Joshua D. Reilly, Esq. Department of 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) seeking permission to charge for time spent segregating or redacting responsive records. 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. G. L. c. 66, § 10(d)(iv). On January 6, 2021, Joshua Dankoff of Citizens for Juvenile Justice requested seven categories of records concerning Department policies and gang related activity. 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. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not 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. SPR21/0138 Page 2 January 29, 2021 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 (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 January 21, 2021, the Department “petitions the Supervisor of Public Records for approval to assess fees for costs associated with responding to a public records request submitted by Mr. Joshua Dankoff.” The Department expressed it “has assigned two attorneys to this request who have spent over 18 hours compiling information to facilitate a potential response to this request. The Department has also consulted with supervisors assigned to the Department’s Division of Homeland Security and Preparedness, Division of Investigative Services, Division of Field Services, Commonwealth Fusion Center, Strategic Planning, Gang Unit, as well as technical staff with access to Department databases to ensure an accurate response to this request.”

Joshua D. Reilly, Esq. SPR21/0138 Page 3 January 29, 2021 The Department contends “there are at least 2 million potentially responsive records that the Department must review and redact in order to respond to parts 1, 4, 6, and 7 of this request, this will impose an onerous burden on the Department, which will have to devote limited resources to review and redact these records.” The Department states, “[i]n response to part 1 of the request, the Department conducted a preliminary search of its records and identified at least 10 Memorandums of Understanding (MOUs) potentially responsive to this request…In response to part 4 of this request the Department has identified at least 1,700,000 records/files potentially responsive this request. This includes 156,312 reports in the Department’s ACISS database containing an individual under the age of 21 and 45,000 reports the Department’s RAMs Database containing an individual under age 21.” With respect to part 6 of the request, the Department notes its “records systems (RAMS1 and ACISS) do not maintain a database concisely listing the categories of data requested. As a result, the Department would have to search both its RAMS and ACISS systems for cases and/or files containing responsive terminology to determine what, if any, data or information responsive to [the] request exists. The Department would then be required to review each case containing a search term requested to determine whether any data responsive to this request is contained within the file.” As for part 7 of Mr. Dankoff’s request, the Department “conducted a preliminary search of its records and has identified at least 21 reports containing information potentially responsive to this request. Each of these reports would need to be reviewed to determine if it is responsive to this request. In addition, the Department would be required to query every school in the Commonwealth by address to accurately identify every responsive report. The Department estimates it would be required to manually query at least 2,000 addresses to identify potentially responsive reports.” The Department explains “[g]iven our office’s and our agencies’ collaboration with other state and federal agencies on criminal investigations and other matters regarding state and national security, the resulting records undoubtedly contain privileged and exempt information such as CORI data, 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. Accordingly, the information must be segregated and redacted from the records before the records are produced to a third party such as the requestor.” Given the public interest served by limiting the cost of public access to the requested records, permission to charge for time spent segregating or redacting responsive records cannot be granted. However, this does not preclude the Department from charging for segregation and redaction that is required by law.

Joshua D. Reilly, Esq. SPR21/0138 Page 4 January 29, 2021 Conclusion This office encourages Mr. Dankoff and the Department 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. 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 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 must provide a response to Mr. Dankoff within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Dankoff may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Joshua Dankoff