Patrick Hanley, Esq. v. Massachusetts State Police (SPR 20210202)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 8, 2021 SPR21/0202 Sean W. Farrell, Esq. Office of Chief Legal Counsel Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Farrell: 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 14, 2021, Attorney Patrick Hanley requested six (6) categories of records related to “Watchguard” and “Motorola,” including responsive bids, reports or evaluations, email communications, etc. 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

Sean W. Farrell, Esq. SPR21/0202 Page 2 February 8, 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 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 29, 2021, the Department requests “…approval to assess fees for costs associated with responding to a public records request submitted by Attorney Patrick Hanley.” The Department provides “…it will expend approximately three (3) minutes reviewing each email identified in the EOTSS search in order to identify and/or determine whether any email(s) are responsive…[a]ccordingly, it would take approximately 468 hours (9259 x 3 mins. = 27,777 mins./60 = 462 hrs. plus 6 hrs.) to research the request…cost estimate of $11,600 (468– 4 hrs. gratis (464) x $25.00). The total good faith estimate to properly research, review and redact the requested records totals $11,600.” The Department indicates it “submitted the subject request to the Executive Office of Technology Services and Security to conduct a Department-wide email search for potentially responsive emails to the subject request. EOTSS’ search yielded 9,259 emails potentially responsive to this request. In order to appropriately determine whether these records are responsive to the subject request, the Department will be required to review and redact, if necessary, these emails and attachments.”

Sean W. Farrell, Esq. SPR21/0202 Page 3 February 8, 2021 The Department further indicates it “ 0.’ The total number of dhoacsu mideenntst iafimedo udnotcs utom 1e,n3t9s8 r pesagpeosn osifv ree ctoor tdhse w hich rtheeq Dueespta frotmr ‘e[nat] lwl rilel shpaovnes tiov ere bviidews f.o Trh ReF DRe SpPa2rt0m-eBnWt hCa-sX 8al0so / iCdOenMtiMfieBdU aYpSp rBoixdi#m:a BteDly-2 205-31 0p4ag4e-s p1o0t4e4ntCia-1ll0y4 r4es-4po6n9s6ive to the request for ‘[a]ll reports or evaluations of testing of the In-Car and Body-Worn Camera Solutions’ and ‘[a]ll documents containing information as to the implementation, procurement, selection, training and rollout of In-Car and Body-Worn Camera Solution provided by WatchGuard.[’] The total number of pages of documents potentially responsive therefore amounts to 1,651 pages. The Department estimates in good faith that it will expend approximately six (6) hours reviewing and redacting these records.” The Department explains “[g]iven the nature of the request, information within these emails may involve highly sensitive law enforcement information. Undoubtedly, the files would contain witness/complainant identity information, criminal offender record information (“CORI”), private and personal information, dates of birth/social security numbers, investigative techniques, and/or whether a case is impounded or an open prosecution (f). These categories of information are specifically exempt pursuant to M.G.L. c. 4, § 7, cl. 26 (a), (c), and (f), and are not subject to public disclosure.” The Department further explains “[a]s a state agency with the responsibility for maintaining extensive confidential information, the Department also 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. Segregation and redaction of numerous Department emails/records relating to the subject matter involve the application of multiple exemptions to the public records law to these types of records. Some information is simultaneously protected by more than one exemption or different exemptions depending on context or the time of disclosure.” Given these records may contain witness and investigative information, CORI, as well as privacy and personal 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 Attorney Hanley 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

Sean W. Farrell, Esq. SPR21/0202 Page 4 February 8, 2021 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, Attorney Hanley 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: Patrick Hanley, Esq.