Peter Jasper v. Plymouth County District Attorney's Office (SPR 20212139)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 7, 2021 SPR21/2139 Arne Hantson, Esq. Assistant District Attorney Plymouth County District Attorney’s Office 166 Main Street Brockton, MA 02301 Dear Attorney Hantson: I have received the petition of Peter Jasper appealing the response of the Plymouth County District Attorney’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 21, 2021, Mr. Jasper requested, “… all incoming and outgoing emails from the District Attorney’s Office of Superior cases only for the days of June 9, 10, and 11, 2020.” Previous appeal This request was the subject of a previous appeal. See SPR21/1769 Determination of the Supervisor of Records (July 30, 2021). The Department responded on July 12, 2021. Unsatisfied with the response, Mr. Jasper petitioned this office and this appeal, SPR21/2139, 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 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

Arne Hantson, Esq. SPR21/2139 Page 2 September 7, 2021 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 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). 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)(iii); 950 C.M.R. 32.06(4). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). The Office’s July 12th fee estimate In its July 12, 2021 response, the Office requested a payment of $1,025.00 for the responsive records. The Office stated, “… it will take approximately 44.00 hours to complete this task [and] will require approximately 500 printed pages.” The Office provided a summary of the fee estimate as follows: Printing Fees Charged: $25.00 Labor Charged: $1,000.00 Total Labor Hours Waived: 4.00 Estimated Total: $1025.00 The Office further stated, “[t]he first 4 hours of time searching, compiling, segregating, redacting and reproducing requested records may not be charged. G.L. c. 66, § 10 (d) (ii); 950 C.M.R. 32.07 (2) (1). A fee equal to or less than the hourly rate of the lowest paid employee with the necessary skill required to complete the request, but no more than $25 per hour, may be assessed, excluding time spent segregating or redacting, unless such segregation or redaction is

Arne Hantson, Esq. SPR21/2139 Page 3 September 7, 2021 approved by the supervisor of records or is required by law. G.L. c. 66, § 10 (d) (ii); 950 C.M.R. 32.07 (2) (1).” Although the Office indicates that the amount of time is 44 hours to complete the task, it is unclear how the Office requires 44 hours to produce responsive records. Particularly, it is not clear how many hours will be spent reviewing, segregating, redacting and preparing responsive records for production. As such, the Office must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Consequently, I find the Office must provide information about whether the responsive records contain information that is required by law to be segregated or redacted, as well as the applicable statutes, if any. Additionally, it is also not clear how many minutes per page the Office requires to review the responsive records. The Office must clarify these issues. For the reasons discussed above, I find the Office must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Office is ordered to provide Mr. Jasper with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Peter Jasper