Matthew Rocheleau v. Department of Correction - Legal Division (SPR 20211013)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 4, 2021 SPR21/1013 Kate Silvia Records Access Officer Department of Correction 50 Maple Street Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Department of Correction (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 13, 2021, Mr. Rocheleau requested, “… [a]ny/all records of recommendation for employment and/or promotion for [numerous] individuals since Jan. 1, 2015.” The Department responded on April 20, 2021. Unsatisfied with the response, Mr. Rocheleau appealed and SPR21/1013 was opened as result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any Department or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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

Kate Silvia SPR21/1013 Page 2 May 4, 2021 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). Agencies may not assess a fee for the first 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 Department’s April 20th Fee Estimate The Department responded on April 20th asserting “… given the large number of individuals for whom records of recommendation for employment and/or promotion are requested, it is estimated that a response will take approximately four (4) weeks.” The Department opined, “[t]he estimated cost to search, redact and produce any responsive documents in response to your records request is estimated at 72 hours at $25.00 per hour, for a total of $1,800.00.” Based upon the above, the Department’s fee estimate has not explained with specificity why the indicated amount of time is necessary for producing the requested records. The Department must detail why 72 hours are required and how much time is needed to search for records and how much time is needed to segregate and/or redact. Further, the Department's fee estimate lacks confirmation that the rate of $25 per hour is of the lowest paid employee who is capable of performing the task(s). Additionally, I find the Department must provide information about whether the responsive records contain information that that is required by law to be segregated or redacted, as well as the applicable statutes, if any. For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fee assessed in its April 20th estimate is consistent with G. L. c. 66, § 10(d). Order Accordingly, the Department is ordered to review the request and provide a response to

Kate Silvia SPR21/1013 Page 3 May 4, 2021 Mr. Rocheleau made in accordance with the Public Records Law, its Access Regulations and this order within 10 business days. A copy of any such response must be provided to this Department. It is preferable to send an electronic copy of this response to this Department at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau