Matthew Rocheleau v. Plymouth County District Attorney's Office (SPR 20210349)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 19, 2021 SPR21/0349 Jessica Kenny, Esq. Assistant District Attorney Plymouth County District Attorney’s Office 166 Main Street Brockton, MA 02301 Dear Attorney Kenny: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Plymouth County District Attorney’s Office (DAO) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 11, 2021, Mr. Rocheleau requested “[a]ny/all disclosures of immediate family working in Massachusetts state government that were made by individuals who applied for employment with the Plymouth District Attorney between Jan. 1, 2015 and present.” Previous Appeal The requested records were the subject of a previous appeal. See SPR21/0179 Determination of the Supervisor of Records (February 10, 2021). In my February 10th determination, the DAO was ordered to provide Mr. Rocheleau with the requested disclosure records, in manner consistent with the order, the Public Records Law and its Regulations. The DAO provided a response on February 11, 2021, which reiterated a fee estimate from its January 13, 2021 response. Unsatisfied with the DAO’s response, Mr. Rocheleau petitioned this office and this appeal, SPR21/0349, was opened as a result. Fee estimate - Agencies 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). 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

Jessica Kenny, Esq. SPR21/0349 Page 2 February 19, 2021 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). The DAO’s January 13th Fee Estimate In its January 13, 2021, response, the DAO states it is “…required under G.L. c. 4, § 7, cl. 26(o)-(p) to redact the name of the family member.” The DAO indicates, “…we estimate to review the over 200 files and provide the data you are requesting is 130-150 hours (8 hours to generate hire list) (40-60 to obtain files in storage), (82 hours to go through each of the approximately 205 files). With the first 4 hours being complementary, the cost would be between $3,150-$3,650. If you would like to amend your request to include only the 100+ files that are currently in our office, the cost would be approximately $1,100 (8 hours to generate hire list), ( 40 hours to go through approximately 100 files).” The DAO explains “[w]e have run a report to identify all employees hired by this office in the time period you requested. This alone has taken 8 hours. There are over 200 employees that fit the parameters of this request. Approximately half of those personnel files are on site at our office. The other half, however, are kept in storage and will require significant time to locate among other stored documents. We believe it will take between 40-60 hours to locate these files that are off-site and segregate them. Once all the files are in our office, we estimate that it will take approximately 2 hours to review 5 files, segregate the responsive documents and either redact or record the information relative to your request.” The DAO is advised an agency is not permitted to charge for time spent segregating records unless segregation is required by law or approved by the Supervisor of Records under a petition. See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). Based on my findings under G. L. c. 268A, § 6B in my February 10th determination, the DAO is not permitted to charge for segregation and redaction of the responsive records. Further, the DAO’s fee estimate has not explained with specificity why the indicated amount of time is necessary for producing the requested records. Specifically, it is unclear why it took the DAO eight (8) hours “to identify all employees hired by this office in the time period” indicated in the request. The DAO must clarify the tasks necessary to search for the records. Further, the DAO’s estimate lacks confirmation of the hourly rate being assessed, as well as how this hourly rate is that of the lowest paid employee with the necessary skill required to produce the responsive records.

Jessica Kenny, Esq. SPR21/0349 Page 3 February 19, 2021 The DAO indicates in its response it will take “40-60 hours to locate these files that are off-site.” Please be advised that the DAO cannot charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § l0(a); see G. L. c. 66, § l2; see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). Order Accordingly, the DAO is ordered to provide Mr. Rocheleau with a revised fee estimate, in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau