Emiliano Falcon-Morano v. Department of State Police - Office of the Chief Legal Counsel (SPR 20210139)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 28, 2021 SPR21/0139 Allison Hynes, Esq. Staff Counsel Office of Chief Legal Counsel Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Hynes: 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 January 6, 2021, Emiliano Falcon, on behalf of the American Civil Liberties Union of Massachusetts (ACLUM), requested: “1. Records revealing which alleged crimes or civil violations (including but not limited to the child rapist and the accomplice to a double murder mentioned by Governor Baker) have been investigated and solved using facial recognition. These records include but are not limited to records containing: a. The names and docket numbers of any criminal cases in which facial recognition was used as an investigatory technique contributing towards the conviction or prosecution of alleged or convicted child rapists; b. The names and docket numbers of any criminal cases in which facial recognition was used as an investigatory technique contributing towards the conviction or prosecution of alleged or convicted murderers and/or their accomplices; c. The names and docket numbers of any cases in which facial recognition was used as an investigatory technique contributing towards the conviction or prosecution of any person for any criminal or civil offense; and d. Records pertaining to: i. the specific role facial recognition technology played in investigations in each case; and 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

Allison Hynes, Esq. SPR21/0139 Page 2 January 28, 2021 ii. any disclosure of material related to the government’s use of facial recognition to criminal or civil defendants, either in the pre-trial or discovery phase of a court proceeding. 2. All internal communications, including emails, pertaining to or discussing: a. any facial recognition product or service; b. Section 26 of S. 2963 or any other legislative proposals regulating or relating to facial recognition technology; and/or c. the regulation of facial recognition technology in Massachusetts.” Subsequent to the opening of this petition, the ACLUM submitted a letter to this office on January 22, 2021, that addresses various portions of the Department’s petition. 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. 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

Allison Hynes, Esq. SPR21/0139 Page 3 January 28, 2021 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, the Department indicates “it will expend an average of 3 minutes to review and redact each report. Accordingly, the good faith estimate for reviewing the 585 reports items is calculated at (3 min. x 585 = 1,755 minutes; 1,755 minutes/60 minutes = approximately 29 hours – 4 gratis hours = 25) at a rate of $25/hour resulting in a total cost of $625. With respect to part two of the request, the Department will be required to review each of the 114,300 email items. The Department estimates…it will expend an average of 2 minutes to review each of these. Accordingly, the good faith estimate for reviewing the 114,300 items is calculated at (2 min. x 114,300 = 228,600 minutes; 228,600 minutes/60 minutes = approximately 3,810 hours) at a rate of $25/hour resulting in a total cost of $95,250.” The Department notes it “would be happy to set up a time with you to discuss narrowing your request to reduce the fee.” The Department states “given the Massachusetts State Police’s 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 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 explains “…the information must be segregated and redacted from the records before the records are produced …[a]s a state agency with the responsibility for maintaining extensive confidential information, the Masssachusetts 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 the security exemption applies.”

Allison Hynes, Esq. SPR21/0139 Page 4 January 28, 2021 The Department further explains “[g]iven that, in total, there are approximately 114,885 items 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.” In its January 22nd response, ACLUM contends “[k]nowing whether MSP uses facial recognition and its role during the discussion of the police reform bill is undoubtedly within the public interest. And the emails at issue in this request will likely shed light on MSP’s ongoing activities in this regard… ACLUM’s public records request undoubtedly serves the public interest of knowing how law enforcement uses facial recognition, a particularly dangerous surveillance technology.” 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 under Exemption (a). Conclusion This office encourages Mr. Falcon 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). 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. Falcon within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Falcon 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: Emiliano Falcon