Emiliano Falcon-Morano v. Department of State Police - Office of the Chief Legal Counsel (SPR 20221093)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 16, 2022 SPR22/1093 Allison Mondello Records Access Officer Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of the Department of State Police (Department) seeking a waiver of statutory limits on fees that may be assessed in responding to a public records request. G. L. c. 66, § 10(d)(iv). The Department furnished a copy of its petition to the requestor as required by law. On April 26, 2022, Emiliano Falcon-Morano, Esq. of the American Civil Liberties Union of Massachusetts requested various categories of records pertaining to the Department’s, “plans for, acquisition of, and/or use of robotics and other remotely operated or automated machines.” Petitions to Assess Fees 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 a municipality’s petition to allow the municipality 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

Allison Mondello SPR22/1093 Page 2 May 16, 2022 Fee Estimates - Agencies If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records ----- custodian must provide the responsive records. 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). Current Petition In its petition dated May 10, 2022, the Department stated: [The Department] conducted preliminary searches of Department emails using terms from the request for half the time period specified. This search resulted in over 34,500 items … [G]iven [the Department’s] collaboration with other state and federal agencies on criminal investigations and other matters regarding state and national security, the resulting records undoubtedly contain privileged and exempt information such as intelligence and investigative data, personnel, private, and security related information, as well as information related solely to internal personnel rules and practices of government necessary to withhold to ensure the proper performance of the Massachusetts State Police. These categories of information are specifically exempt pursuant to G.L. c. 4, § 7, cl. 26 (a), (b), (c), (f), and/or (n) and are not subject to public disclosure. Accordingly, the information must be segregated and

Allison Mondello SPR22/1093 Page 3 May 16, 2022 redacted from the records before the records are produced to a third party such as the requestor. As a state agency with the responsibility for maintaining extensive confidential information, the Massachusetts State Police has an obligation to ensure proper procedures are maintained to prevent the dissemination of information which is protected from disclosure by law. Fulfilling such an obligation requires a careful review and segregation of records intended for disclosure. In light of the above, I find that 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). Conclusion Accordingly, the Department is permitted to charge for time spent segregating and redacting the requested records. I encourage the parties to communicate further to enable the Department to provide records in an efficient and affordable manner. Please note, any fee estimate must be in compliance with the provisions of the Public Records Law. The requestor 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). Sincerely, Rebecca S. Murray Supervisor of Records cc: Emiliano Falcon-Morano, Esq.