Matthew Rocheleau v. Hampshire County Sheriff's Department (SPR 20210925)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 22, 2021 SPR21/0925 Thomas Mitchell Public Information Officer Hampshire Sheriff’s Office 205 Rocky Hill Road Northampton, MA 01061 Dear Mr. Mitchell: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Hampshire Sheriff’s Office (Office) 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 Hampshire Sheriff’s Department between Jan. 1, 2015 and present.” Previous Appeal The requested records were the subject of a previous appeal. See SPR21/0697 Determination of the Supervisor of Records (April 5, 2021). In my April 5th determination, I found the Office’s fee estimate had not explained with specificity why the indicated amount of time is necessary to produce the requested records. The Office was ordered to provide Mr. Rocheleau with a revised response to the request, in a manner consistent with the order, the Public Records Law and its Regulations. The Office provided said response on April 9, 2021. Unsatisfied with the Office’s response, Mr. Rocheleau petitioned this office and SPR21/0925 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

Thomas Mitchell SPR21/0925 Page 2 April 22, 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 Office’s April 9th response In its April 9th response, the Office states “[t]he revised fee for this request is $825, calculated by the lowest paid person qualified to fulfill the request – 15 minutes per document for 37 hours at $25 per hour. After deducting the cost of the initial four hours, the $825 fee is based on the estimate of 33 hours at $25 per hour.” The Office explains “…the records sought do not exist in an electronic database…fulfilling this request will require, by hand, the 151 applications covering six years in question, and then photocopying, redacting and rescanning each into a transmissible PDF format.” In his appeal, Mr. Rocheleau states “[t]he office says that will take a total of 15 minutes per file for each of the 151 files. But the office does not specify how long each of those individual tasks will take, thus the fee estimate lacks the specificity and detail required under the public records law.” Mr. Rocheleau further states “[w]hat’s more, one of those steps, redaction is entirely unnecessary and the office has not provided any basis for why redaction is necessary. The Supervisor of Records has ruled repeatedly on the very records at issue here in recent weeks and months determining in each case that the records are fully a matter of public record and no portion can be redacted; exemptions (o) and (p) do not apply. (See appeal cases: SPR21/0330, SPR21/0240, SPR21/0241, SPR21/0242, SPR21/0179).” Mr. Rocheleau contends “…there are 151 potentially responsive records, the vast majority of those records will not actually be responsive (they will be blank forms, or ones where the applicant indicated ‘No’ to the question on the form and left the rest blank, because most people who have worked for the office have not been an immediate family member of another person working in state government.) Therefore, the task of photocopying will only be necessary in a small fraction of the 151 cases.” The Office’s fee estimate has not explained with specificity why the indicated amount of time is necessary to produce the requested records. Specifically, it is unclear why it will take the Office “15 minutes per document” to produce the responsive records. The Office must also explain the time being allotted to each task. The Office must clarify these matters.

Thomas Mitchell SPR21/0925 Page 3 April 22, 2021 The Office 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). Order Accordingly, the Office is ordered to provide Mr. Rocheleau with a revised response to the request, 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: Matthew Rocheleau