David Jeswald v. Department of State Police - Office of the Chief Legal Counsel (SPR 20211694)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 22, 2021 SPR21/1694 Christine Dowling, Esq. Staff Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Dowling: I have received the petition of David Jeswald appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 25, 2021, Mr. Jeswald requested the following records: [1] [A]ny and all content, please provide complaints against [a named trooper]. [2] [A]udio recordings from phone calls between [named individuals] regarding a complaint against [a named trooper] . . . [3] A complete audit of the external investigation involving [a named trooper] received Dec. 15, 2016 with case number: 2016-0317. [4] Any and all records, complaints, investigations, lawsuits, any completed audits, and police record of former [named trooper]. The Department provided a response on June 4, 2021, indicating it did not possess certain records and providing a fee estimate for a portion of the request. Objecting to the fees, Mr. Jeswald petitioned this office and this appeal, SPR21/1694, was opened as a result. This appeal pertains to Item 4, the subject of the fee estimate. Fee Estimates – 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 four hours of employee time to search for, 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

Christine Dowling, Esq. SPR21/1694 Page 2 July 22, 2021 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 June 4th fee estimate In its June 4, 2021 fee estimate, the Department indicates that after conducting a search of its ACISS system it identified a minimum of 37 potentially responsive investigative reports. The Department states that “[b]ased on the nature of the requested records, [it] reasonably believes that they contain information, the redaction of which is required by law under [Exemption (a)]. ACISS reports typically relate to the investigations of complex criminal matters, such as homicides, sexual assault, drug trafficking, and other serious crimes.” The Department explains that the records need to be segregated, because “. . . these documents are likely to contain information that is protected from public disclosure by M.G.L. c. 6, § 172, the criminal Offender record Information statute. . ., M.G.L. c. 41, § 97D [and] . . . G.L. c. 66A, §§ 1&2. . . .” The Department states that it would take approximately 25-35 minutes for each ACISS report to segregate and make redactions required by law. Accordingly, the Department estimates . . . 15.4 to 21.6 hours to segregate and redact the potentially responsive ACISS records, resulting in a cost of $285.00 to $440.00 [total number of hours x $25 per hour – 4 hours].” Although the Department states that it requires 25-35 minutes to segregate and redact each ACISS report, it is unclear how many pages there are in each report, nor how many minutes per page the Department requires to review the responsive records. The Department must clarify these issues. Fee waivers In his appeal petition, Mr. Jeswald states “I would like to request a waiver for these fees given that these documents are need to be made available so the public can have a better understanding of how this public entity is serving its community.” G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public

Christine Dowling, Esq. SPR21/1694 Page 3 July 22, 2021 understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. Although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k) (emphasis added). Conclusion Accordingly, the Department is ordered to provide Mr. Jeswald with a response to the request, provided 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: David Jeswald