Andrew Quemere v. Essex County District Attorney's Office (SPR 20221037)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 10, 2022 SPR22/1037 Kayla M. Johnson, Esq. Assistant District Attorney Appeals Division Essex County District Attorney’s Office 10 Federal Street Salem, MA 01970 Dear Attorney Johnson: On May 5, 2022, this office received your petition on behalf of the Essex County District Attorney’s Office (Office) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, the Office furnished a copy of this petition to the requestor, Andrew Quemere. G. L. c. 66, § 10(c). On April 20, 2022, Mr. Quemere requested various records regarding fatal shootings by police officers in Essex County from 2012- present. Petition to Assess Fees – Agencies 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 (Supervisor) 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). 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 an agency’s petition to allow the agency to charge for time spent segregating or redacting 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 this request was not made for a commercial purpose. 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

Kayla M. Johnson, Esq. SPR22/1037 Page 2 May 10, 2022 The second prong of the test is whether the fee represents an actual and good faith representation by the agency to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 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. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – 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 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). Current Petition The Office’s May 5th letter states, “…this Office provided an initial response on April 26, 2022, and provided the requestor with copies of seven final reports from officer-involved shootings within the specified time frame, along with a memorandum on officer-involved fatal shootings.” The Office further states, “…that it was in possession of additional records regarding officer-involved shootings, but that such records contained substantial information qualifying for protection under G.L. c. 4, § 7 cl. 26(f) (citizen witness information) and G.L. c. 4, § 7 cl. 26(c) (private or medical information). The Office also provided Mr. Quemere with a good faith fee estimate of 30 hours to comply with his request, reduced to 26 hours, at $25 per hour, for a total of $650.” The Offices notes that it “…has culled from four banker’s boxes over 100 pages of responsive paper records (police and forensic reports, interview transcripts) and 39 data storage devices (3 CDs containing footage from officer-involved shootings, 36 CDs containing officer or first responder interviews). This Office is not in possession of ‘electronic data that track

Kayla M. Johnson, Esq. SPR22/1037 Page 3 May 10, 2022 information related to shootings by police,’ nor ‘reports that track statistical information about shootings by police.’” The Office contends that “[t]he responsive records include information qualifying for redaction pursuant to G.L. c. 4, § 7 cl. 26(f) (citizen witness information) and G.L. c. 4, § 7 cl. 26(c) (private or medical information).” The Office further states, “…while this Office generally considers police officer and first responder interviews (video, audio, or transcript) concerning police involved shootings to be public, each will nonetheless have to be reviewed for redaction of any information qualifying under the above exemptions, or the officers’ own personal identifying information (e.g., date of birth; social security number; home address; or home telephone number). See G.L. c. 4 s. 7 cl. 26(c), (o), (p).” The Office notes, “[t]his Office has already undertaken 4 hours to review and compile documents responsive to Mr. Quemere’s request. I conservatively estimate that an additional 10 hours would be necessary to review, line by line and frame by frame, all of the compiled materials in order to redact, including digital redaction of video/audio recordings where feasible, and information subject to the above-identified exemptions. Accordingly, this Office seeks authorization from the Supervisor to access a fee of $250 (10 hours at $25 per hour), for time required to redact these documents in accordance with the above identified exemptions.” Conclusion Given the public interest served by limiting the cost of public access to the requested records, permission to charge for time spent segregating or redacting responsive records cannot be granted. However, this does not preclude the Office from charging for segregation and redaction that is required by law. When preparing a fee estimate for the provision of the requested records, the Office 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 Office must provide a response to Mr. Quemere 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: Andrew Quemere