Philip G. Cormier v. Department of State Police - Crime Lab (SPR 20212874)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 5, 2021 SPR21/2874 Darina Griffin, Esq. Legal Counsel Department of State Police - Crime Lab 124 Acton Street Maynard, MA 01754 Dear Attorney Griffin: On October 29, 2021, this office received your petition on behalf of the Department of State Police Crime Lab (Department) requesting permission to charge for time spent segregating or redacting responsive records under G. L. c. 66, § 10 (d)(iv). As required by law, the Department furnished a copy of its petition to the requestor, Attorney Philip G. Cormier of Good, Schneider, Cormier and Fried. G. L. c. 66, § 10(c). On October 18, 2021, Attorney Cormier requested various categories of records concerning the Department. Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality's petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that the request is not for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary 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

Darina Griffin, Esq. SPR21/2874 Page 2 November 5, 2021 such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). Municipalities may not assess a fee for the first (two) 2 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities 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. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). 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) Current Petition In its October 29th petition, the Department seeks “…approval to assess fees associated with responding to a public records request submitted by Phil Cormier on October 18, 2021.” The Department “…has determined that in order to identify responsive records, a threshold record review of approximately 2,896 pages of documents is necessary… Given the volume of information the Department must review, this will impose an onerous burden on the Department which will have to devote limited resources to complete these tasks. The Department is requesting that you grant the request to charge a fee pursuant to G.L. c. 66, § 10 for the reasons set forth in the attached petition.” Further, “…because the request seeks documents that date back to 2006, the Department must also review documents that are maintained in long term storage.” The Department explains that “[t]he records in question may contain privileged or exempt information such as Criminal Offender Record Information, proprietary information subject to copyright laws, investigatory materials, private information, and witness names and statements. These categories of documents are specifically exempt pursuant to G.L. c. 4, §7; cl. 26 (a), (c) and (f), and are not subject to public disclosure. Accordingly, the information must be redacted from the records pursuant to law.”

Darina Griffin, Esq. SPR21/2874 Page 3 November 5, 2021 The Department asserts that “[t]hese case files contain private and investigatory materials and would be subject to redaction for these materials as well pursuant to the privacy exemption within G.L. c. 4, § 7, cl. 26 (c) and investigatory exemption in G.L. c. 4, § 7, cl. 26(f).” The Department posits that “[t]he case files are also likely to contain witness information and statements. These documents would also have to be redacted pursuant to G.L. c. 4, §7, cl. 26 (c) G.L. c. 4, §7, cl. 26 (f). The case files would also contain information excluded from public disclosure by G.L. c. 4, § 7, cl. 26 (a) which exempts from public disclosure any records that are ‘specifically or by necessary implication exempted from disclosure by statute.’” In addition,“[t]he laboratory includes records and data compiled by a Massachusetts criminal justice agency, which concern identifiable individuals and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, and other judicial proceedings. See 803 CMR 2.00 and G.L. ch. 6, § 167. CORI information would also be contained in any responsive records to paragraph 13 because the requestor seeks information related to testimony in criminal court cases. This CORI information is protected from disclosure and therefore will require redaction.” The Department states Attorney Cormier “…clarified [his] requests in paragraph 2 and 3, among other paragraphs, seek materials compiled or prepared for the purpose of accreditation in the area of fire debris analysis and interpretation.” The Department interprets “…this as a request for its conformance files. A conformation file is based on standards and information that are subject to federal copyright laws. In the ordinary course of applying for accreditation and maintaining accreditation, the Department obtains a copy of standards pursuant to a licensing agreement. To the extent that the public records law requires records access officers ‘to furnish a copy of any public record’ (G.L. c. 66, s. 10(a)), copyrighted materials are not public records, as the federal statute vests the exclusive right to create copies in the copyright holder. See 17 U.S.C. s. 106. Copyrighted materials are, therefore, ‘specifically or by necessary implication exempted from disclosure by statute’ when the means of that disclosure is copying. G.L. c. 4, s. 7, cl. 26(a). Therefore, the Department would have to redact the proprietary standards and information from the responsive documents pursuant to the law.” Conclusion In light of the Department’s petition, I find the Department has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the Department may assess a charge for the segregation and redaction of such exempt material. Please note, Attorney Cormier has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d)(iv)(4), 10A(c).

Darina Griffin, Esq. SPR21/2874 Page 4 November 5, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Philip G. Cormier, Esq.