Elizabeth Levitan, Esq. v. Norfolk County Sheriff's Office (SPR 20211737)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 26, 2021 SPR21/1737 Courtney M. Madden, Esq. Senior Advisor and Counsel Norfolk County Sheriff’s Office 200 West Street Dedham, MA 02027 Dear Attorney Madden: I have received the petition of Attorney Elizabeth Levitan appealing the response of the Norfolk County 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 April 12, 2021, Attorney Levitan requested “documents relating to the educational services offered to students in general and special education at the Norfolk County Correctional Center,” providing an extensive description of the specific documents she was seeking. The Office replied on April 20, 2021, acknowledging receipt of the request, and again on May 3, 2021, providing a fee estimate. Unsatisfied with the Office’s response, Attorney Levitan appealed, and this case was opened as a result. Fee Estimates – Agencies If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 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

Courtney M. Madden, Esq. SPR21/1737 Page 2 July 26, 2021 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 Appeal In her appeal petition, Attorney Levitan asks that the Office “produce records . . . at no charge.” She contends that “[f]irst, the response received on April 20, 2021 failed to comply with the requirements under MGL c. 66 §10(b),” and “[s]econd . . . that in Norfolk’s response received on May 3, 2021, [the Office] failed to comply with MGL c. 66 §. 10(b)(vii) and moreover made statements on which [Attorney Levitan] relied in good faith that Norfolk failed to satisfy.” The Office’s Responses In its April 20, 2021 response, the Office stated that it was “in receipt of the . . . record request,” “currently working to gather the information requested,” and stated that “[o]nce all of the information has been compiled, [the Office] will forward it to [Attorney Levitan].” In a letter dated April 30, 2021, the Office provided Attorney Levitan with a fee estimate. Also, in a letter to this office and Attorney Levitan on July 16, 2021, the Office further explained its fee estimate and described efforts already expended in fulfilling the request. It is unclear if the Office’s response met all the requirements under G. L. c. 66, § 10(b) to assess a fee for the requested records. Pursuant to the law, the written response must be not later than 10 business days after the initial receipt of the request for public records, made via first class or electronic mail and must: (i) confirm receipt of the request; (ii) identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the records access officer serves; (iii) identify the agency or municipality that may be in possession, custody or control of the public record sought, if known; (iv) 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, provided that nothing in the written response shall limit an agency’s or municipality’s ability to redact or withhold information in accordance with state or federal law; (v) identify any public records, categories of records, or portions of records that the agency or municipality intends to produce, and provide a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time

Courtney M. Madden, Esq. SPR21/1737 Page 3 July 26, 2021 to produce the public records sought; (vi) identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein; (vii) suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably; (viii) include an itemized, good faith estimate of any fees that may be charged to produce the records; and (ix) include a statement informing the requestor of the right of appeal to the supervisor of records under subsection (a) of section 10A and the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court under subsection (c) of section 10A. G. L. c. 66, § 10(b). The Office is advised in order to assess a fee for the requested records, it must demonstrate it provided a response in compliance with G. L. c. 66, § 10(b). The Office must clarify this. This office encourages Attorney Levitan and the Office to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Conclusion Accordingly, the Office is ordered to provide Attorney Levitan with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Elizabeth Levitan, Esq.