Colman Herman v. Bristol County District Attorney's Office (SPR 20222780)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 16, 2022 SPR22/2780 Courtney Almeida Paralegal Bristol County District Attorney’s Office 888 Purchase Street New Bedford, MA 02740 Dear Ms. Almeida: I have received the petition of Colman Herman appealing the response of the Bristol County District Attorney’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 20, 2022, Mr. Herman requested: [1] Records of all the expenses [an identified individual] has incurred in his capacity as Bristol County district attorney for the period October 1, 2021 to September 30, 2022. This includes, but is not limited to the following[:] [a] Expense reports, including back-up receipts[;] [b] Credit card statements, including back-up receipts[;] [c] Automobile expense records, including back-up receipts[;] [d] Any and all other records that document [an identified individual’s] expenses, including back-up receipts…. [2] The written employee reimbursement policy of the Bristol County district attorney’s office[.] On November 22, 2022, the Office responded. Unsatisfied with the Office’s response, Mr. Herman petitioned this office and this appeal, SPR22/2780, was opened as a result. While this appeal was pending, the Office submitted a supplemental response dated December 6, 2022. Fee estimate - agencies 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). 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

Courtney Almeida SPR22/2780 Page 2 December 16, 2022 Agencies may not assess a fee for the first 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). The Office’s November 22nd Response In its November 22, 2022 response, the Office provided a fee estimate of $100. The Office asserts: According to our records, you have requested similar records in a request from 2017. The 2017 request resulted in a total of 17.5 hours of work to comply with your request. For which our office did not assess any fees. Our office anticipates that in order to comply with your most recent request, eight hours will be required. Our office anticipates that the following redactions will be required: the removal of information that is non-responsive; the removal of account numbers or identifying numbers to prevent fraud, as allowed under M.G.L. c. 4, § 7, cl. 26(c); information regarding the Grand Jury because it is secret and not a public record. Mass. R. Crim. P. 5(d); records that disclose the configuration of a public office, because it is not a public record. G.L. c. 4, § 7, cl. 26(n); the home address or personal contact information of a Commonwealth employee because it is not a public record. G.L. c. 4, § 7, cl. 26(o)-(p). Under G.L. c. 66, §10(d)(ii); 950 C.M.R. 32.07(2)(1), this office is entitled to a reimbursement for the personnel time, beyond the first four hours, expended to review, redact, and produce the records. Our office anticipates that in order to comply with your request a total of eight hours of work will be required. Our office will perform the first four hours without assessing fees as required by G.L. c. 66, §10(d)(ii); 950 C.M.R. 32.07(2)(1). Furthermore, in our office there is no employee available who makes less than $25 per hour to work on and comply with this request. In a supplemental response dated December 6, 2022, the Office argues: Our office estimates that it will require at least the statutory four-hour free period to locate and segregate the responsive documents….The additional four hours for which this office is assessing a $100 fee are required to redact the responsive

Courtney Almeida SPR22/2780 Page 3 December 16, 2022 records….Mr. Herman states that our office may not charge for segregation or redaction of records unless the law requires such segregation or redaction or if you have approved to do so. Mr. Herman further alleges that our office has made no showing of the presence of either one. His statement is incorrect. The Office asserts that “[t]he assessment of fees here is very conservative and includes only the time period for location, segregation, and redaction as required by law.” Further, the Office states that it “put forth a reasonable estimate of time in that Mr. Herman made a similar request for records in 2017.” Current Appeal In his appeal, Mr. Herman argues that the Office “cannot charge me for segregation/ redaction unless the law requires segregation/redaction or you approve a petition allowing him to do so. But [the Office] has made no showing of the presence of either one of these criteria.” Although the Office has estimated that the process of responding to the records request will take 8 hours of employee time, it is unclear how many hours each task, such as locating the records, reviewing the records, and segregating or redacting the records, will take. Further, it is unclear how many pages of responsive records exist and how many minutes per page it will take to segregate and redact the responsive records. Additionally, it is unclear under what statutes the Office is redacting the records. Pursuant to 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). The Office must provide information about whether the responsive records contain information that is required by law to be segregated or redacted, as well as the applicable statutes, if any. I encourage the parties to communicate in order to facilitate producing records efficiently and affordably. The requestor may wish to narrow the scope of the request. G. L. c. 66, § l0(a)(i). The Office must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or 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 agency or municipality to produce records sought more efficiently and affordably). For the reasons discussed above, I find the Office must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Office is ordered to provide Mr. Herman with a response to the request,

Courtney Almeida SPR22/2780 Page 4 December 16, 2022 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