Maya Shaffer v. Massachusetts State Police (SPR 20221242)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 1, 2022 SPR22/1242 Keith A. Paquette, Esq. Legal Counsel Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Paquette: I have received your petition on behalf of the Massachusetts Department of State Police (Department) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). In a letter dated May 14, 2022, Maya Shaffer of Critical News requested a copy of an identified individual’s internal affairs file. Petition 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 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

Keith A. Paquette, Esq. SPR22/1242 Page 2 June 1, 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 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 In its petition dated May 27, 2022, the Department seeks “…the permission of the Supervisor of Records to assess a reasonable fee for the production of records in accordance with M.G.L c. 66, § 10(d)(ii) and 950 CMR 32.07(2)…Based on the nature of the requested records, the Department reasonably believes that they contain information that will be redacted pursuant to M.G.L. c. 4, § 7, cl. 26(a), M.G.L. c. 4, § 7, cl. 26(c), M.G.L. c. 4, § 7, cl. 26(f), and M.G.L. c. 4, § 7, cl. 26(o).” The Department notes that “…segregation and redaction time is required for the Department to review the responsive internal affairs investigation records because these documents are reasonably likely to contain information that is exempt from disclosure pursuant to the public records law, including the following exemptions: •M.G.L. c. 4, § 7, cl. 26(a) - records that are specifically or by necessary implication exempt from disclosure by statute. The following are the types of records that are contained in internal affairs investigation records that are redacted pursuant to exemption (a):

Keith A. Paquette, Esq. SPR22/1242 Page 3 June 1, 2022 -Home Addresses and Telephone Numbers of Public Safety Personnel G. L. c. 66, § 10B. The Department and other law enforcement agencies are involved in internal affairs investigations. As such, their home addresses and telephone numbers could be contained in the internal affairs records. •M.G.L. c. 4, § 7, cl. 26(c) – ‘personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation.’ The Department has reviewed internal affairs records in the past that contain the following information that the Department has redacted pursuant to the privacy exemption: -Medical information, such as a person’s previous or current medical condition, a specific description of their injuries, the medical facility that they were transported too, and information pertaining to prescription medications. -Personal private information, such as a person’s date of birth, license numbers, social security number, and marital status. •M.G.L. c. 4, § 7, cl. 26(f) ‘investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest’. The Department has reviewed internal affairs investigation records in the past that contain the following information that the Department has redacted pursuant to the investigatory exemption: -Names and identifying information of witnesses. -Records itself may contain information pertaining to an on-going prosecution or investigation. •M.G.L. c. 4, § 7, cl. 26(o) ‘the home address, personal email address and home telephone number of an employee of…an agency, executive office, department…’ The Department members, and in some circumstances members of other state agencies, have been involved in internal affairs investigations. As such, their home address and telephone number could be contained in the records.” 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 Department from charging for segregation and redaction that is required by law. When preparing a fee estimate for the provision of the requested records, the Department is advised to provide a detailed explanation to the requestor detailing why the amount of time is

Keith A. Paquette, Esq. SPR22/1242 Page 4 June 1, 2022 necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Department must provide a response to Ms. Shaffer within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Shaffer may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Maya Shaffer