Nathaniel Story v. Department of State Police - Office of the Chief Legal Counsel (SPR 20210903)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 13, 2021 SPR21/0903 Allison Hynes, Esq. Staff Legal 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 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 March 26, 2021, Nathaniel Story requested, “… all Personnel Orders promulgated by the Office of the Superintendent from 2010 through to the present date.” Petition to Assess Fees - Agency 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). 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. SPR21/0903 Page 2 April 13, 2021 Current Petition In its petition dated April 7, 2021, the Department states it “… has determined that there are approximately 5,886 records that are responsive to [Mr. Story’s] request. As such, to respond to [Mr. Story’s] request, the Department would be tasked with reviewing approximately 5,886 records. The labor associated with researching, reviewing, and redacting this voluminous amount of information would be extremely costly, time-consuming, and burdensome.” The Department notes, “[g]iven 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.” The Department explains, “[t]hese 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. Accordingly, the information must be segregated and redacted from the records before the records are produced to a third party such as the requestor.” The Department “… estimates, conservatively and in good faith that it will expend an average of 3 minutes to review and redact each record. Accordingly, the good faith estimate for reviewing the 5,886 records is calculated at (3 min. x 5,886 = 17,658 minutes; 17,658 minutes/60 minutes = approximately 294.3 hours – 4 gratis hours = 290.3 hours) at a rate of $25/hour resulting in a total cost of $7,257.50.” Although the Department states, “[t]hese 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,” it has not provided information regarding what records it intends to produce and why such records are likely to contain exempt information. Conclusion I find the Department has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Please note, however, this does not preclude the Department from charging for segregation and redaction that is required by law. Further, this office encourages Mr. Story 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 indicating why the estimated amount

Allison Hynes, Esq. SPR21/0903 Page 3 April 13, 2021 of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Department must provide a response to Mr. Story within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Story 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: Nathaniel Story