Peter Jasper v. Office of the District Attorney - Essex District (SPR 20212140)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 2, 2021 SPR21/2140 Kristen W. Jiang, Esq. Assistant District Attorney Essex County District Attorney’s Office 10 Federal Street Salem, MA 01970 Dear Attorney Jiang: I have received the petition of Peter Jasper appealing the response of the Essex 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 SPR21/1776 Determination of the Supervisor of Records (July 29, 2021). The Office provided a response on August 4, 2021. Unsatisfied with the Office’s response, Mr. Jasper petitioned this office and this appeal, SPR21/2140, was opened as a result. 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 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

Kristen W. Jiang, Esq. SPR21/2140 Page 2 September 2, 2021 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 2nd Response On August 2, 2021, the Office responded to Mr. Jasper by providing him with a fee estimate of $525. The Office explained that, “responding to [Mr. Jasper’s] request would require staff of this Office to review somewhere in the neighborhood of 1,413 emails-not including attachments-in order to determine whether they pertain to a superior court matter, as requested, and whether they contain information that this Office must or would likely withhold on the basis of one of the objections outlined above.” The Office then provided a calculation for the fee estimate stating it “conservatively estimate that it would take approximately 25 hours to complete [Mr. Jasper’s] request, only 21 hours of which would be compensable to the Commonwealth at a rate of $25 per hour, or $525. See G.L. c. 66, § 10 (a)(iii). This does not include postage and copying costs, which would be also assessed prior to the mailing of any non-exempt responsive documents.” Based on the Office’s response, it is unclear why the Office requires the amount of time listed above to produce the requested records. The Office must provide further details about the tasks required to produce these records. The Office must clarify these matters, including whether any segregation and redaction is required by law. 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 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