Colman Herman v. Department of Conservation and Recreation (SPR 20221766)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 15, 2022 SPR22/1766 Michael Tencellent, Esq. Records Access Officer Department of Conservation and Recreation 251 Causeway Street, 9th Floor Boston, MA 02114 Dear Attorney Tencellent: I have received the petition of Colman Herman appealing the response of the Department of Conservation and Recreation (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 16, 2022, Mr. Herman requested the “…copies of any and all communications related to DCR ‘working to better align internal and external resources to advance the recommendations that were made.’” On May 2, 2022, the Department responded with a fee-estimate. Mr. Herman objected to the fee estimate and petitioned this office, this appeal, SPR22/1766, was opened as a result. Prior Appeal The requested records were the subject of a prior appeal. See SPR22/1066 Determination of the Supervisor of Records (May 20, 2022). In my May 20th determination, I ordered the Department to provide a further response. On July 29, 2022, the Department responded. Unsatisfied with the Department’s response, Mr. Herman petitioned this office and this appeal, SPR22/1766, was opened as a result. Fee Estimates 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. 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

Michael Tencellent, Esq. SPR22/1766 Page 2 August 15, 2022 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 responses In its previous May 2, 2022 response, the Department provided the following fee estimate: We have conducted a preliminary search for responsive records. At this point, there appear to be at least 20 individuals with responsive records. Given the volume of material involved and the estimated search time, in accordance with M.G.L. c. 66, § 10(b) and 950 C.M.R. 32.07(2) DCR is assessing a reasonable fee to process this production of public records. Our good faith itemized estimate below is for the search process as a whole, but excluding any possible charges that may assessed for segregating and redacting records under 950 CMR 32.07(e). We contemplate that the search of each individual’s records, whether in paper or electronic format, will require an average of two and half (2.5) hours per person of “search time” as defined in 950 CMR 32.02. We estimate the search time to be 50 hours (20 individuals X 150 minutes per individual / 60minutes per hour). We also estimate that we have spent 2 hours in our initial search and will spend an additional 5 hours in our final consolidation and production, for an additional 7 hours. With this total of 57 hours and subtracting 4 hours pursuant to 950 CMR 32.07(2)(l)(1), we estimate the total fee to be $1,325.00 (53 hours at $25 per hour). Note that the staff costs involved are much more than $25 per hour, but the hourly rate has been limited to that sum pursuant to 950 CMR 32.07(2)(l)(3). The Department stated that it would require 52 hours, to search for responsive records. The Department also stated it would require 5 hours to consolidate the requested records.

Michael Tencellent, Esq. SPR22/1766 Page 3 August 15, 2022 However, it is unclear why the Department requires a total of 52 hours to search and 5 hours to compile for records responsive to this request. As such, I find the Department must provide additional details regarding the tasks involved in the search process. On July 29, 2022, the Department provided a further response stating, “…I offered that I am available to assist you if you propose to modify the scope of your request. I do not believe I received such a proposal.” Where the Department has expressed its willingness to assist Mr. Herman in modifying this request, this office encourages the parties to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency 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). Conclusion Accordingly, the Department is ordered to provide Mr. Herman 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. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman