Eleonora Bianchi v. Massachusetts Department of State Police (SPR 20222195)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 30, 2022 SPR22/2195 Anthony Serra, Esq. Staff Legal Counsel Office of Chief Legal Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Serra: On September 26, 2022, this Office received your petition on behalf of the 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). On September 12, 2022, Eleonora Bianchi, of the New Bedford Light, requested, “[a]ll [d]eath [i]nvestigations and [r]eports [r]ecords (J03-01) of the inmates who died in the Bristol County facilities while in the custody of Sheriff Hodgson” for the time period of “05/21/1997 to 09/12/2022.” 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 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

Anthony Serra, Esq. SPR22/2195 Page 2 September 30, 2022 purpose. 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 September 26th petition, the Department explains: The Department has conducted a diligent search and located 21 responsive records from the time period of 2014 to present. To locate the files prior to 2014, the Department would have to conduct a hand search of the Bristol County State Police Detective Unit’s (“SPDU”) log books for approximately 17 years to determine if the address responded to was a Bristol County detention facility and, if so, a hand search for the physical file would then have to be conducted. Each of these log books contains approximately 25 pages with 25 entries per page. As such, approximately 10,000 (25 entries/page x 25 pages x 17 years) entries would have to be searched to determine the number of responsive files. The Department estimates that this search process would take approximately 1 hour per year to complete.

Anthony Serra, Esq. SPR22/2195 Page 3 September 30, 2022 As such, the Department estimates, conservatively and in good faith, that it would take approximately 18 hours to compile the electronic and physical records. The Department further states: As a state agency with responsibility for maintaining extensive confidential information, the Department has an obligation to ensure proper procedures are maintained to prevent the dissemination of information that is protected from disclosure by law and the public records statute. Fulfilling such an obligation requires a careful review and segregation of records intended for disclosure. Based on the nature of the requested records, the Department reasonably believes that they contain information that will be redacted pursuant to [Exemptions (a), (c), and (f)]. As such, segregation and redaction time is required for the Department to review the aforementioned records since the responsive records are reasonably likely to contain information that is exempt from disclosure pursuant to the public records law, including [Exemptions (a), (c), and (f).] The Department explains: From the period of 2014 to present, approximately 8 years, the Department identified approximately 21 responsive records. Additionally, the Department estimates that from 1997 to 2013, a sixteen year period, there would be at least 42 more responsive records. Upon review of a sample of the electronic reports, the Department estimates it would take approximately 30 minutes to review, segregate, and redact each record. As such, the Department estimates that it would take approximately thirty-one and a half hours (63 records x .5 hours = 31.5 hours) to segregate and redact all the potentially responsive records. Accordingly, the good faith estimate is calculated to 49.5 (18 hours + 31.5 hours =49.5 hours. After subtracting the standard 4 hours, the total is 45.5 hours as a rate of $25/hour which equals $1,137.50. I find the Department 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). Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition, 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.

Anthony Serra, Esq. SPR22/2195 Page 4 September 30, 2022 Please note 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), l0A(c). Sincerely, Manza Arthur Supervisor of Records cc: Eleonora Bianchi