Todd Wallack v. Department of Correction - Legal Division (SPR 20221449)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 8, 2022 SPR22/1449 Kate Silvia Director of Communications Department of Correction Legal Division 70 Franklin Street, Suite 600 Boston, MA 02110-1327 Dear Ms. Silvia: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Department of Correction (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 17, 2022, Mr. Wallack requested “[a]udio recordings of all telephone calls placed by or to Aaron Hernandez while housed in a Department of Correction facility between April 17, 2017 and April 19, 2017.” Previous appeal This request was the subject of a previous appeal. See SPR22/1320 Determination of the Supervisor of Records (June 21, 2022). In my June 21st determination, I ordered the Department to provide additional information regarding its fee estimate, particularly, if the responsive records contained information that is required by law to be segregated or redacted, as well as the applicable statutes, if any. The Department provided a response on June 23, 2022. Unsatisfied with the Department’s response, Mr. Wallack petitioned this office and this appeal, SPR22/1449, was opened as a result. 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 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

Kate Silvia SPR22/1449 Page 2 July 8, 2022 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). The Department’s June 23rd response In its June 23, 2022, response, the Department attached a February 11, 2021 decision from the Attorney General’s Office regarding a similar matter, and indicated that it “. . . is entitled to charge the requestor for the time spent redacting such information[.]” The Department is advised that under the Public Records Law, a fee may 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). I am not aware that the Department has submitted a petition under G. L. c. 66, § 10(d)(iv). Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records. See 950 C.M.R. 32.06(4)(g). However, if the Department intends to assess fees for redactions as required by law, I find the Department must state the applicable statute(s) as it pertains to this particular public records request. Conclusion Accordingly, the Department is ordered to provide Mr. Wallack with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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.

Kate Silvia SPR22/1449 Page 3 July 8, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Todd Wallack