Erica M. Bruno v. Department of State Police - Crime Lab (SPR 20211279)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 28, 2021 SPR21/1279 Darina Griffin, Esq. Legal Counsel Massachusetts Department of State Police Crime Laboratory 124 Acton Street Maynard, MA 01754 Dear Attorney Griffin: I have received your petition on behalf of the Department of State Police (Department) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor. Id. On May 6, 2021, Attorney Erica Bruno requested “[a] copy of any and all ‘failed worksheets’ and/or ‘incomplete worksheets’ relating to a ‘failed annual calibration’ of any and all Draegar Alcotest 7110 devices maintained by the Office of Alcohol Testing in Massachusetts.” 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

Darina Griffin, Esq. SPR21/1279 Page 2 May 28, 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 (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). Current Petition In its petition dated May 20, 2021, the Department seeks “approval to assess fees associated with responding to a public records request submitted by Erica Bruno on May 6, 2021.” The Department notes it “… has determined that in order to identify responsive records, a thorough review of approximately 31,383 pages of documents is necessary.” The Department explains, “[u]pon receipt of the public records request, the Department retrieved all documents related to the Draegar Alcotest 7110 devices from long term storage. The documents were contained in 11 banker’s boxes. The Department has estimated that the 11 boxes contain approximately 31,383 pages of potentially responsive documents.” Further, “[b]y way of background, the Draegar Alcotest 7110 devices are breath test instruments that were employed in the Commonwealth between approximately 2003 and 2011. Therefore, the records that the requestor is seeking are at least over 10 years old, but also date back even further.”

Darina Griffin, Esq. SPR21/1279 Page 3 May 28, 2021 The Department further expressed that it conducted “…a cursory review of a sampling of the documents and asserts that the records must be thoroughly reviewed in order to make a determination of whether responsive documents even exists and if they do, which of the documents are responsive to the specific request for ‘incomplete’ or ‘failed’ worksheets. Furthermore, a review of a representative sample of the records reveals that the contact information of law enforcement officers is contained within these documents, which is an item of information that would be subject to redaction pursuant to M.G.L. c. 4, § 7, cl. 26(c) (privacy exemption applies to ‘materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.’)” In regards to fees, the Department states that it “… will be required to review each of the 31,383 documents. The Department estimates, conservatively and in good faith that it will expend an average of 1 minute[] to review each page. Accordingly, the good faith estimate is calculated as follows: 31,383 minutes/60 minutes equals 523 hours. After subtracting the standard 4 hours the total is 519 hours at a rate of $25/hour which comes to $12,975.” Although the Department states, “… a review of a representative sample of the records reveals that the contact information of law enforcement officers is contained within these documents, which is an item of information that would be subject to redaction pursuant to M.G.L. c. 4, § 7, cl. 26(c),” 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. 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 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 Attorney Bruno within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Attorney Bruno 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: Erica M. Bruno, Esq.