Colman Herman v. Department of Conservation and Recreation (SPR 20222526)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 22, 2022 SPR22/2526 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 October 22, 2022, Mr. Herman requested “…all communications between the Department of Conservation and Recreation and Harvard University related to the Newell Boathouse and the Weld Boathouse for the period January 1, 2020 to the present.” On November 4, 2022, the Department responded with a fee-estimate. Mr. Herman objected to the fee estimate and petitioned this office. This appeal, SPR22/2526, 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. 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 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. SPR22/2526 Page 2 November 22, 2022 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 November 4th response In its November 4th response, the Department provided the following fee estimate: In accordance with M.G.L. c. 66, § 10(b) and 950 C.M.R. 32.07(2), we have determined that a charge of $ 662.50 is necessary for search time as well as for production costs to produce the requested records. This amount includes the following breakdown: 1. Identifying the location of potential records: 1 hour of search time. This process involves interviewing key staff and conducting meetings with these key staff to determine who has responsive records, how we would conduct this search and how we would identify the location of any paper and electronic records. 2. Search time for Paper Records and Electronic Records. 30 hours of staff search time. This includes staff time (1 staff member) to search for any paper or electronic records, as well as to scan any paper records. 3. Segregation Time charges: 0 hours of staff time 4. Production Time & Costs: .5 hours for records to be sorted, organized, transferred internally and then produced. We anticipate that records will be produced electronically by OneDrive and therefore there will be no mailing costs, however, this is only our estimate and could be subject to change if we do have to mail any records. 5. Total Cost Estimate (30hours of search time + .5 hour production time + 0 hours segregation time = 30.5 hours total, excluding the first four hours = 26.5 hours at $25/hour = Total Good Faith Estimate: $662.50) Please be advised that the Department cannot charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § l0(a); see G. L. c. 66, § l2; see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). Based on the Department’s response, it is unclear how the Department may assess a fee for “[i]nterviewing key staff” in order to locate responsive records. The Department must clarify how these tasks constitute search time. The Department must clarify these matters.

Michael Tencellent, Esq. SPR22/2526 Page 3 November 22, 2022 Further, the Department stated that it would require 30.5 hours, to search for responsive records. However, it is unclear why the Department requires a total of 30 hours to search for records responsive to this request. As such, I find the Department must provide additional details regarding the tasks involved in the search process. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). 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