Elizabeth Mone v. Massachusetts Department of State Police (SPR 20210481)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 4, 2021 SPR21/0481 Allison E. Hynes, Esq. Massachusetts Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Hynes: I have received your petition on behalf of the Department of State Police (Department) requesting approval to assess fees for costs associated with responding to a public records Request. As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor. Id. On February 10, 2021, Attorney Elizabeth T. Mone of Mone Law requested “... a data table containing the following information regarding every criminal case filed by the Massachusetts State Police through an Application for Complaint in any division of the Boston Municipal Court: Offense Date, Filing date of Application for Complaint, Name of Court where the Application for Complaint was Filed, Each charge sought on the Application for Complaint, Defendant Race/Ethnicity, Defendant Gender, Defendant identification number, Victim Race/Ethnicity, Victim Gender, Case Status, Disposition, if available.” Attorney Mone notes she is requesting “…information from May 7, 2018 - July 23, 2020.” 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). 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 E. Hynes, Esq. SPR21/0481 Page 2 March 4, 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 February 24, 2021, the Department seeks “…approval to assess fees for costs associated with responding to a public records request submitted by Attorney Elizabeth Mone.” The Department indicates “…to provide the requested data to Attorney Mone, the Department will need to create two custom queries.” The Department states it “…will expend between 10.5 hours to create custom queries to produce the data requested by Attorney Mone, this will impose a burden on the Department, which will have to devote limited resources to produce the requested data. As the time required to create the custom queries for the RAMS and ACISS databases is estimated to take approximately 10.5 hours, the Department’s good faith estimate of costs amounts to between $162.50. This amount is based upon the following: 10.5 hours to create the two custom queries-4 gratis hours= 6.5 hours at a rate of $25 resulting in a cost of $162.50.” The Department contends that “[t]his fee estimate represents an actual and good faith representation. This fee includes the costs associated with researching, assembling and reviewing

Allison E. Hynes, Esq. SPR21/0481 Page 3 March 4, 2021 the data responsive to this request. The fee is necessary, reasonable, and not designed to limit, deter or prevent access to requested public records.” In a supplemental response sent to this Office on March 1, 2021, the Department states, “…please be advised that the hourly rate of the two lowest paid employees who have the knowledge and skill to create the custom queries described in the Department’s fee petition exceeds $25 per hour. As such, the Department requested the maximum fee allowed by statute ($25 per hour).” In response to the Department’s petition on February 26, 2021, Attorney Mone states, “I made this request in my capacity as a bar advocate, representing an indigent criminal defendant. The requested records are necessary to pursue a claim that my client is the victim of selective prosecution based on race. These claims serve the public interest by revealing racially disparate results hidden within our criminal justice system. See Commonwealth v. Long, 485 Mass. 711, 716 (2020) (‘All too frequently, however, the prohibition against facially discriminatory laws has been inadequate to address the role played by racism and other invidious classifications in the way facially neutral laws actually are enforced’).” The Department requests relief outside the scope of statutory authority given to the Supervisor under the Public Records Law. See G. L. c. 66, § 10(d)(iv); G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). Conclusion Accordingly, I will consider this petition closed. Any fee estimate by the Department must be in compliance with the Public Records Law and its Regulations. Attorney Mone may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Elizabeth T. Mone, Esq.