Peter Jasper v. Suffolk County District Attorney's Office (SPR 20212141)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 7, 2021 SPR21/2141 Claudia Buruca Records Access Officer Suffolk County District Attorney’s Office One Bulfinch Place, Suite 300 Boston, MA 02114 Dear Ms. Buruca: I have received the petition of Peter Jasper appealing the response of the Suffolk 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 SPR21/1770 Determination of the Supervisor of Records (July 30, 2021). The Department responded on August 2, 2021. Unsatisfied with the response, Mr. Jasper petitioned this office and this appeal, SPR21/2141, 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 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

Claudia Buruca SPR21/2141 Page 2 September 7, 2021 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 August 2nd fee estimate In its August 2, 2021 fee estimate, the Office stated “[a] preliminary result for this search yields about 1900 emails. Due to the magnitude of the request, I am unable to process this request fully since it will unduly burden my responsibilities as the records access officer.” The Office explained, “[b]ased on similar email requests, it takes about 8 hours to convert 500 emails into a PDF. If I am processing 1900 emails, I anticipate this process taking about 31 hours.” The Office further explained, “[i]f I conservatively estimate that each email will take 20 minutes to review, excluding the time it will take to review attachments if any exist, I anticipate this process to take 634 hours ... to complete your request … which is about 17 weeks.” The Office also advised, “I am writing to see if you can narrow down the scope of your request. The request you submitted was too broad for me to conduct a search …” The Office’s fee estimate response has not explained with specificity why the indicated amount of time is necessary for producing the requested records. The Office has not provided sufficient clarification to explain why 634 hours is necessary to search, segregate, and redact the records in order to comply with the records request. It is also not clear from the Office’s estimate

Claudia Buruca SPR21/2141 Page 3 September 7, 2021 how many hours were allocated to search, segregation, and redaction of the records. Finally, the Office is advised that an agency is not permitted to charge for time spent segregating records unless segregation is required by law or approved by the Supervisor of Records through a petition. See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). The Office must clarify these matters. I encourage Mr. Jasper and the Office to communicate in order to facilitate producing records efficiently and affordably. Mr. Jasper may wish to include applicable factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Office must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality 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 or municipality to produce records sought more efficiently and affordably). 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 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