Mikhael El-Bayeh v. Massachusetts State Police (SPR 20212040)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 17, 2021 SPR21/2040 Sean W. Farrell, Esq. Deputy Chief Legal Counsel Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Farrell, On August 12, 2021, this office received your petition on behalf of the Massachusetts Department of State Police (Department) requesting permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c), (d)(iv). As required by law, the Department furnished a copy of this petition to the requestor, Mikhael El-Bayeh. Id. On July 29, 2021, Mr. El-Bayeh requested “…sixty three (63) traffic citations issued to motorists for civil traffic infractions.” 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 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 CMR 32.06(4). 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

Sean W. Farrell, Esq. SPR21/2040 Page 2 August 17, 2021 Current Petition In its August 12th pettion, “[t]he Department of State Police (Department) hereby petitions, pursuant to G.L. c. 66, §10 and 950 CMR 32.07, the Supervisor of Public Records for approval to consolidate a request submitted by Mikhael El-Bayeh (‘requestor’) on July 29, 2021 seeking sixty three (63) traffic citations issued to motorists for civil traffic infractions with two (2) prior requests the requestor submitted seeking similar citations.” The Department notes, “…on June 1, 2021, the requestor submitted a records request seeking ‘copies of (1) [25] Officer’s Copy of Citation with Officer’s Notes (2) Judgment by Magistrate for Civil Motor Vehicle Infraction (3) Judgment on De novo Appeal of Civil Motor Vehicle Infraction (as applicable), and/or records substantially similar to these enumerated items.”’ Further, “[o]n June 29, 2021, the requestor submitted a second request seeking fifty (50) citations with officer’s notes as well as records related to ‘(2) Department paid expenditures incurred during tours of duty by Troopers assigned to Concord A‐3 and Andover A‐1, whether paid directly by the Department or reimbursed, during times where such Troopers were fulfilling an assignment pursuant to an agreement under G.L. c. 22C, § 29, for the period of May 24, 2021 through June 22, 2021, inclusive.”’ The Department “…requests that the requestor’s July 29, 2021 request be consolidated with the prior June 29, 2021 and June 1, 2021 requests. The Department, moreover, seeks approval to access a fee in the amount of $100 (4 hours at $25 per hour) dollars for costs and expenses associated with responding to the July 29 request. See G.L. c. 66, §10(d)(ii)(C)(a fee -- assessment ‘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 clause (iv).’ The Department asserts that these three requests seek a voluminous amount of information of similar type records and constitute an on-going and continuous request for citation and operator data.” The Department asserts that “[t]he three requests were separately submitted over a period of two months. The Department has, to date, expended approximately fifteen (15) hours researching, reviewing, assembling and redacting records responsive to the June 1 and June 29 requests and anticipates, in good faith, expending an additional four (4) hours researching, reviewing, assembling and redacting the requested traffic citations.” The Department contends that “the fee assessment represents an actual and good faith representation by the agency to comply with the on-going nature of this request. Second, the fee is necessary such that the request could not have been prudently completed without the redaction, segregation or fee in excess of $25 per hour. Third, the amount of the fee ($100) is reasonable and not designed to limit, deter or prevent access to requested public records. Lastly, an assessment of a fee under these circumstances will not adversely affect any ‘public interest.’ G.L. c. 66, §10(d)(iv)(1).” Although the Department states “…the request could not have been prudently completed without the redaction,” it has not provided information regarding what records it intends to

Sean W. Farrell, Esq. SPR21/2040 Page 3 August 17, 2021 produce and why such records are likely to contain exempt information. Conclusion I find the Department has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Please note, however, this does not preclude the Department from charging for segregation and redaction that is required by law. When preparing a fee estimate for the provision of the requested records, the Department is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Department must provide a response to Mr. El-Bayeh within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Sincerely Rebecca S. Murray Supervisor of Records cc: Mikhael El-Bayeh