Colman Herman v. Bristol County District Attorney's Office (SPR 20222933)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 6, 2023 SPR22/2933 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[.] Previous Appeal This request was the subject of a previous appeal. See SPR22/2780 Determination of the Supervisor of Records (December 16, 2022). In my December 16th determination, I ordered the Office to provide Mr. Herman with a response to his request. On December 21, 2022, the Office responded. Unsatisfied with the Office’s response, Mr. Herman petitioned this office and this appeal, SPR22/2933, was opened as a result. Fee estimate - agencies An agency may assess a reasonable fee for the production of a public record except those 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 SPR22/2933 Page 2 January 6, 2023 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 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 December 21st Response In its December 21, 2022 response, the Office provides a fee estimate of $100. The Office asserts: Our office estimates that it will take the first four hours to locate, review and segregate the records from other records held within our office. Our office currently has 269 pages and anticipates that there are likely another 38 pages to be located, reviewed, and segregated, having an estimated total of 307 pages to review and redact. Generally, when redacting records our office estimates it will take two minutes per page. It will take the first four free hours to complete the tasks of locating, reviewing, and segregating the records. Redacting these records will take approximately ten hours and fourteen minutes, (307 pages x 2 minutes per page = 614 minutes or 10 hours and 14 minutes). Our office has only assessed a fee for four hours, which falls measurably short of the ten hours it will likely take to redact and produce these records, after the statutory four-hour free period for locating and segregating…. Our office must redact the nonresponsive records. Such nonresponsive records include those that do not fall within the timeframe you have requested as well as those which do not apply to the District Attorney and may apply to other employees within the office. The records include credit card numbers. Pursuant to M.G.L. c. 4, § 7, cl. 26 (c) (“data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy”), our office must remove such information to prevent fraudulent use of a credit card or personal identity

Courtney Almeida SPR22/2933 Page 3 January 6, 2023 fraud. See also G.L. c. 4, § 7, cl. 26 (n) (exemption for records relating to security of persons, buildings, utilities, cyber security, or other infrastructure). If credit card numbers or other account numbers are disclosed publicly, those numbers can be used unlawfully and will disrupt the security and functioning of this office. The records may include the home address or personal contact information of a Commonwealth employee, which must be redacted pursuant to G.L. c. 4, § 7, cl. 26(o)-(p). Current Appeal In his appeal, Mr. Herman asserts, “[t]here is not a single item that [the Office] wants to charge me for that [it] is allowed to charge me for. [The Office] even wants to charge me for redacting ‘nonresponsive records.’” 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 clarify if redactions are required by law. It is additionally uncertain why the Office requires “. . . four hours to locate, review and segregate the records . . .” and “. . . two minutes per page” to redact the responsive records. The Office must explain how much time it is allocating to locating, reviewing, and segregating the records. Also, it is unclear why the Office may assess a fee for redacting non-responsive records. The Office must clarify this matter. 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, 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