Adam Bradley v. Middlesex District Attorney's Office (SPR 20221544)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 12, 2022 SPR22/1544 Daniel M. DeBlander, Esq. Assistant District Attorney Middlesex District Attorney’s Office 15 Commonwealth Avenue Woburn, MA 01801 Dear Attorney DeBlander: On July 5, 2022, this office received your petition on behalf of the Middlesex District Attorney’s Office (Office) 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 Office furnished a copy of its petition to the requestor. G. L. c. 66, § 10(c). On June 17, 2022, Adam Bradley requested “…any and all internal and external, sent and received, deleted, trash, queued, saved, not sent, spam emails and correspondences between July 7, 2012 through December 30, 2012, including, but not limited to emails and correspondences received or sent from [various custodians].” 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 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

Daniel M. DeBlander, Esq. SPR22/1544 Page 2 July 12, 2022 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 such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 July 5th petition, the Office seeks “…approval to assess fees for costs associated with responding to a public records request submitted by Adam Bradley.” The Office states the following: Because Mr. Bradley’s request lists the “Middlesex District Attorney’s Office” as a requested custodian, we understand his request as seeking all email and electronic correspondences for every custodian employed by this office for an approximately six month timeframe covering the period from July 7, 2012 through December 30, 2012. Although Mr. Bradley’s letter indicates that it is related to the July 7, 2012, homicide of [an identified person] in the town of Billerica, Massachusetts, nothing in the language of the request itself limits responsive records to email communications concerning that case. Our Office has determined that review of the records responsive to Mr. Bradley’s request would require our Office to review six months of email communications for approximately 225 custodians employed by our Office during the timeframe requested… The email records in question concerning all email accounts for every individual employed by this Office for a sixth month period, necessarily contain privileged or exempt information such as Criminal Offender Record Information (CORI) related to

Daniel M. DeBlander, Esq. SPR22/1544 Page 3 July 12, 2022 criminal defendants, investigatory materials including the identities and statements of voluntary witnesses and victims, communications subject to attorney client privilege or work product, information concerning cases of domestic violence, sexual assault, or rape, medical information and other information of a highly personal nature. These categories of records and information are specifically exempt pursuant to M.G.L. c. 4, § 7, cl. 26 (a), (c), (d) and (f), and are not subject to disclosure… Based upon prior reviews of individual custodians’ emails for similar timeframes we estimate that each custodian will require 90 hours of review time. At 90 hours per custodian for approximately 225 custodians we estimate that it will take 24,750 hours to review responsive records. After subtracting the initial four hours the total is 20,246 hours at a rate of $25/hour which comes to $506,150. Conclusion I find the Office 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 Office may assess a charge for the segregation and redaction of such exempt material. This office encourages Mr. Bradley and the Office to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Any updated fee estimate by the Office must be in compliance with this determination, the Public Records Law, and its Access Regulations. Please note, Mr. Bradley 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: Adam Bradley