Elizabeth Levitan, Esq. v. Norfolk County Sheriff's Office (SPR 20212014)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 19, 2021 SPR21/2014 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 (with a letter dated April 30, 2021), providing a fee estimate. Previous Appeal This request has been the subject of a previous appeal. See SPR 21/1737 Determination of the Supervisor of Records (July 26, 2021). In my July 26th determination, I ordered the Office to clarify whether it provided a response in compliance with G. L. c. 66, § 10(b), and I encouraged both parties to continue communicating in order to facilitate providing records more efficiently and affordably. The Office responded in a letter to this Office and Attorney Levitan on August 4, 2021. Unsatisfied with the Office’s response, Attorney Levitan further appealed, and this case 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). 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. SPR21/2014 Page 2 August 19, 2021 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 – 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 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 August 4th Response In its August 4, 2021 response, the Office states the following: [The Office] responded with a standard acknowledgement of records request within the 10 business day time limit. . . [T]he scope and volume of the requested records required 530 specific factors for consideration. In the process of fulfilling the request, it became clear that [the Office] would need substantial time and staff power to meet the demand for records far beyond the four hours allotted under law. As such, [the Office] presented a fee assessment that was discounted due to the nature of the requester’s non-profit status. It is the position of [the Office], that Ed Law Project waived the associated time requirements when the requester continued to engage with [the Office] on the fee assessment rather than appeal on those grounds immediately. The [Office] relied in good faith that fee assessment was accepted and that both the agency and the requester would

Courtney M. Madden, Esq. SPR21/2014 Page 3 August 19, 2021 continue to finalize a process for transfer of the records that would not . . . unduly burden the agency including but not limited to modifications in the scope to achieve the requester’s goals. At no point during direct communications did Ed Law Project reject the fee assessment or raise objection on the grounds of timeliness. 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).” I find the Office has not met its burden to demonstrate that its April 20, 2021 response was in compliance with G. L. c. 66, § 10(b). Further, where Attorney Levitan submitted a request on April 12, 2021, and the Office did not provide a good faith estimate of fees until May 3, 2021, the thirteenth business day, I find the Office has not met its burden to demonstrate that its May 3, 2021 response was in compliance with G. L. c. 66, § 10(b). Accordingly, the Office may not charge a fee for public records under G. L. c. 66, § 10(e). 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). To the extent possible, records must be provided on a rolling basis. Conclusion Accordingly, the Office is ordered to provide Attorney Levitan with a response to the 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 this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Elizabeth Levitan, Esq.