Laura Carey v. Bristol County Sheriff's Office (SPR 20211990)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 18, 2021 SPR21/1990 Lorraine Rousseau, Esq. Records Access Officer Bristol County Sheriff's Office 400 Faunce Corner Road North Dartmouth, MA 02747 Dear Attorney Rousseau: I have received the petition of Laura Carey, Esq. of the New England Innocence Project appealing the response of the Bristol 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 May 7, 2021, Attorney Carey requested certain booking photos. The Office responded on June 21, 2021. Unsatisfied with the Office’s response, Attorney Carey petitioned this office and this appeal, SPR21/1990, was opened as a 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 officer 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(b)(iv); 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). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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 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

Lorraine Rousseau, Esq. SPR21/1990 Page 2 August 18, 2021 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). The Office’s June 21st Fee Estimate In its June 21st response, the Office stated,”… [there are] 5 boxes and the estimated cost to retrieve those boxes from this private contractor is $121.64. Please be aware that the retrieval cost is set by the independent contractor.” The Office further explained, “… it is estimated that it will cost $200.04 to research and redact the responsive records. There are 60 pages that need redactions (5 minutes/page) at this time which will also need to be copied at $.05 per page.” The fee estimate is as follows: 3 hours to research and locate the responsive records at the rate of $24.63/hour = $73.89 5 hours to review and make redactions required by law at the rate of $24.63 = $123.15 60 copies $.05= $3.00 Total cost: $200.04 The Office cited Exemptions (a), (c), (e) and (f) to either redact or withhold exempt records. Based upon the above, it is unclear if the Office is charging for segregation and redaction of records which is not required by law. Further, the Office’s fee estimate has not explained with specificity why the indicated amount of time is necessary for producing the requested records. The Office must detail how much time is needed to search, as well as explain what tasks are necessary to provide the records. Further, the Office'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). The Office is reminded it cannot charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § l0(a); see G. L. c. 66, § l2; see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). Therefore, the Office cannot pass along its costs for use of its third-party vendor services.

Lorraine Rousseau, Esq. SPR21/1990 Page 3 August 18, 2021 For these reasons, I find the Office must revise its fee estimate. Conclusion Accordingly, the Office is ordered to provide Attorney Carey with a response to her request in a manner consistent with the Public Records Law and its Access Regulations within 10 business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Attorney Carey may appeal the substantive nature of the Office's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Laura Carey, Esq.