Andrew Ryan v. Plymouth County District Attorney's Office (SPR 20210574)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 23, 2021 SPR21/0574 Keith Garland, Esq. Assistant District Attorney Plymouth County District Attorney’s Office 166 Main Street Brockton, MA 02301 Dear Attorney Garland: I have received the petition of Andrew Ryan of the Boston Globe appealing the response of the Plymouth County District Attorney’s Office (Office) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On November 24, 2020, Mr. Ryan requested 6 categories of records: 1) All emails, text messages, and other communication sent to or from [an identified individual] that include the phrases. . . . 2) All emails, text messages, and other communication sent to or from [an identified individual] on Nov 12, 2020, and Nov. 13, 2020. . . . 3) All emails, text messages, and other communication sent to or from any employees of the Plymouth County District Attorney’s office that include the word . . . from Oct. 1, 2020, to today [November 24, 2020]. . . . 4) All emails, text messages, and other communication sent to or from [an identified individual] to any employee of the Plymouth County District Attorney’s office from 12/11/2013 to today [November 24, 20200]. . . . 5) All emails, text messages, and other communication sent to or from Rockland Police Chief . . . to any employee of the Plymouth County District Attorney’s office from 12/11/2013 to 12/31/2013. . . . 6) All emails, text messages, and other communication sent to or from Rockland Police Chief . . . to any employee of the Plymouth County District Attorney’s office from 10/15/2020 through today [November 24, 2020]. . . . Mr. Ryan indicated that responsive email records should include “. . . direct recipients and those on the CC and BCC lines.” The Office provided a fee estimate on December 4, 2020, for a total cost of $750 to produce responsive records. 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

Keith Garland, Esq. SPR21/0574 Page 2 March 23, 2021 On December 4, 2020, Mr. Ryan requested 2 categories of responsive records: 1) All emails sent to or from ADA . . . on Jan 14, 15, and 16, 2015 2) All emails sent to or from ADA . . . in 2015 that include the word . . . While this request was pending, and in an attempt to narrow the December 4th cost estimate, on December 10, 2020, Mr. Ryan requested an individual estimate for the first 3 items of his November 24th request: 1) All emails, text messages, and other communication sent to or from [an identified individual] that include the phrases. . . . This should include direct recipients and those on the CC and BCC lines. 2) All emails, text messages, and other communication sent to or from [an identified individual] on Nov 12, 2020, and Nov. 13, 2020. This should include direct recipients and those on the CC and BCC lines. 3) All emails, text messages, and other communication sent to or from any employees of the Plymouth County District Attorney’s office that include the word . . . from Oct. 1, 2020, to today. This should include direct recipients and those on the CC and BCC lines. On December 21, 2020, the Office provided a fee estimate for the December 4th and December 10th requests. Regarding the December 4th request, the Office estimated that it would require 6 hours to produce responsive records at a rate of $25 per hour, “request (1) will cost $150.00 and request (2) will also cost $150.00.” With respect to the December 10th narrowed request, the Office stated that “. . . each of the three [] requests is estimated to cost $150.00 each.” Believing that both requests amounted to a total of $300, Mr. Ryan sent a $300 check to the Office. After multiple inquiries regarding when responsive records would be provided, the Office provided a subsequent fee estimate to the December 10th narrowed request on February 25, 2021. Unsatisfied with the Office’s February 25th response, Mr. Ryan petitioned this office and this appeal, SPR21/0574, was opened as a result. Fee estimate If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records ----- custodian must provide the responsive records. An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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).

Keith Garland, Esq. SPR21/0574 Page 3 March 23, 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). 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Office’s February 25th fee estimate In its February 25, 2021 fee estimate, the Office explains, “[i]n order to begin to comply with your request, the emails must be pulled from our system. The IT department estimates it will take approximately 4 hours to set up each query, monitor the progress, review and compile the data, produce the search results report, and export the data to media. There are many [] moving parts and tasks in setting up each query and running each query and it is dependent on the size of the mailbox, past file size and wide area network bandwidth or connectivity speed between EOTSS email servers. Each query is different. Also a separate query has to be performed for each user. This type of query and the actual search can only be performed when they are not in use.” The Office further explains that “. . . these record[s] will have to be redacted in accordance with G.L. c. 4, § 7, cl. 26(c), insofar as they contain information relating to specifically named individuals, i.e., identifying/contact information, the disclosure of which may constitute an unwarranted invasion of personal privacy. See also G.L. c. 66A, § 2(c) and 940 C.M.R. 11.04(1)(b)(1).” The Office also states that the records may require further redaction “. . . due to the deliberative process exemption under G.L. c. 4, § 7, cl. 26(d). See DaRosa v. City of New Bedford, 471 Mass. 446, 457 (2015). . . .” Additionally, the Office asserts that “. . . it took more than the 6 hours originally charged to search for and compile the records alone. . . . The costs to continue to comply with this request will be far greater than anticipated due to the sheer volume of search results. . . . The search produced 3,352 emails/messages. Each result or email is contained in a separate file. In order to further comply with your request, each file/email will have to be individually opened, reviewed, saved into ou[r] redacting software if needed, redacted as required by law, and resaved. At a minimum, [the Office] anticipate[s] this will take an average of 10 minutes per file/email. Therefore, [the Office] estimate[s] it will take 33,520 minutes to complete. Thus, it would take 558.66 hours for the [December 10th request] to be completed. The lowest paid employee that

Keith Garland, Esq. SPR21/0574 Page 4 March 23, 2021 can complete this task makes $22.07/hour. Initial Review & Redaction: 558.66 Hours x $22.07 = $12,329.77[.]” Further, the Office states that “. . . an attorney . . . will need to review the work completed by the lowest paid employee capable of completing the task. . . . [The Office] anticipate[s] it will take two minutes per file/email to review and edit, to ensure it is completed in accordance to the law. At 3352 files, this will take 6,794 minutes, which is 111.73 hours. Attorney Review & Edit: 111.73 Hours x $25.00 = $2, 793.33. Total Estimate to Continue Processing = $15,123.10[.]” In its February 25th estimate, the Office explains that it “. . . anticipate[s] this will take an average of 10 minutes per file/email. . . . [I]t will take 33,520 minutes to complete. Thus, it would take 558.66 hours for the above to be completed.” Based on the Office’s response, it is unclear why the Office requires 10 minutes to review and redact each email, file, and/or text message. The Office must provide further information regarding the contents of these emails and text messages, and further delineate the time it is allocating to reviewing and redacting emails as opposed to text messages. It is additionally uncertain why the Office requires additional 2 minutes to review and edit each email and text message. In its estimate, the Office states that it is assessing a fee for redacting records under Exemptions (c) and (d) of the Public Records Law. Under the Public Records Law, a fee may 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). Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records. See 950 C.M.R. 32.06(4)(g). Where these redactions are not required by law, I find the Office may not assess a fee for redacting these records. The December 4th request With respect to the December 4th request, the Office provided a fee estimate on December 21, 2020. The Office states that “. . . it will take approximately 4 hours to set up each query, monitor the progress, review and compile the data, produce the search results report, and export the data to media.” The Office explains that “. . . these record[s] will have to be redacted in accordance with G.L. c. 4, § 7, cl. 26(c), insofar as they contain information relating to specifically named individuals, i.e., identifying/contact information, the disclosure of which may constitute an unwarranted invasion of personal privacy. See also G.L. c. 66A, § 2(c) and 940 C.M.R. 11.04(1)(b)(1).” The Office also states that the records may require further redaction “. . . due to the deliberative process exemption under G.L. c. 4, § 7, cl. 26(d). See DaRosa v. City of New Bedford, 471 Mass. 446, 457 (2015). . . .” The Office “. . . estimate[s] that the cost of the search, segregation, and redaction of this file will be as follows: Search & Segregation 4 Hours $25.00\hour[;] Attorney Review\Redact 2 Hours $25.00\hour. Total Hours = 6, Chargeable Hours = 6, Total Estimate = $150.00/request. Therefore, request (1) will cost $150.00 and request (2) will also cost $150.00.”

Keith Garland, Esq. SPR21/0574 Page 5 March 23, 2021 G. L. c. 66, § 10(e) In an email correspondence on March 23, 20201, Mr. Ryan states “[the Office] did not provide a fee estimate until after 10 business days so the office should not be able charge fees for [the December 4th] request. The Plymouth DA received my request on Dec. 4 and it did not provide a fee estimate until Dec. 21.” G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where Mr. Ryan submitted a public records request on December 4th and the Office provided a response on December 21st, I find it is unclear whether the Office complied with G. L. c. 66, § 10(e). Specifically, the Office must demonstrate whether it provided a response to Mr. Ryan’s request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request. Conclusion Accordingly, the Office is ordered to provide Mr. Ryan with a response, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. 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: Andrew Ryan