Elizabeth Levitan, Esq. v. Essex County Sheriff's Department (SPR 20212010)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 23, 2021 SPR21/2010 Gretchen Grosky Essex County Sheriff's Office Director of Communications 20 Manning Avenue Middleton, MA 01949 Dear Ms. Grosky: I have received the petition of Elizabeth Levitan, Esq. appealing the response of the Essex 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 all Essex County Correctional Facilities, including the Middleton House of Correction and the Lawrence Community Correction Center.” The Office provided a response on May 20, 2021, which included a fee estimate. Unsatisfied with the Office’s response, Attorney Levitan petitioned this office and SPR21/2010 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. 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

Gretchen Grosky, RAO SPR21/2010 Page 2 August 23, 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 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 May 20th response In its May 20, 2021 response, the Office provided a fee estimate to Attorney Levitan stating, “[w]e have reviewed [Attorney Levitan’s] April 12, 2021 public records request and it is quite extensive. We estimate that it will take at least 120 hours at $25 an hour to fulfill [Attorney Levitan’s] request, not including the first four hours at no charge. Because this request includes review of individual inmate records over a span of four years, in addition to review of Department policy, records, and other documents and information, it is quite possible the number of hours to fulfill [Attorney Levitan’s] request could exceed this initial estimate and those hours would also be billed at $25 an hour. Should the request take fewer hours, we would reduce the number of billable hours.” On August 9, 2021, Attorney Levitan appealed to this office the fee estimate “on the grounds that Essex failed to reply within the required 10 business days and therefore cannot assess a fee under MGL c. 66 §10(e).” G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where Attorney Levitan submitted a public records request on April 12, 2021, and the Office provided a response on May 20, 2021, I find it is unclear whether the Office complied with G. L. c. 66, § 10(e). Specifically, the Office must demonstrate whether it provided a response to Attorney Levitan’s request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request.

Gretchen Grosky, RAO SPR21/2010 Page 3 August 23, 2021 Conclusion Accordingly, the Office is ordered to provide Attorney Levitan with a response to the request, in a manner consistent with this order, the Public Records Law, and its Regulations within 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: Elizabeth Levitan, Esq. Scott B. Sullivan, Esq.