Martha Smith-Blackmore, DVM v. Department of State Police - Legal Office (SPR 20210922)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 14, 2021 SPR21/0922 Joshua D. Reilly, Esq. Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Reilly: I have received your petition on behalf of the Department of State Police (Department) requesting permission to assess fees associated with responding to a request for records. On March 28, 2021, Martha Smith-Balckmore requested: “From January 1, 2009 through December 31, 2019 any and all monthly reports made by agents of the Massachusetts Society for the Prevention of Cruelty to Animals and the Animal Rescue League of Boston to the Colonel of the Massachusetts State Police pursuant to 515 CMR 5.07(2)[.]” 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

Joshua D. Reilly, Esq. SPR21/0922 Page 2 April 14, 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 April 9, 2021, the Department requests approval to assess fees for costs associated with responding to a public records request. The Department states that for “reports generated between 2015 and 2019, the Department will be required to search its electronic database to locate, compile, and print any responsive reports for each requested month and agency. This search will require approximately 8 hours of search time.” With respect to reports between 2009 and 2014, the Department “will be required to locate and copy paper files for each month and agency requested…[and] will require approximately 16 hours of search time.” Conclusion 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).

Joshua D. Reilly, Esq. SPR21/0922 Page 3 April 14, 2021 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. Ms. Martha Smith- Balckmore 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: Martha Smith-Balckmore