Lewis E. Floyd III v. Bristol County District Attorney's Office (SPR 20230063)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 26, 2023 SPR23/0063 Courtney Almeida, Esq. Assistant District Attorney Bristol County District Attorney’s Office 888 Purchase Street New Bedford, MA 02740 Dear Attorney Almeida: I have received the petition of Lewis E. Floyd III 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 December 12, 2022, Mr. Floyd requested DAMION case management records regarding specific crimes and classifications as well as the assignment of specific assistant district attorneys. On December 21, 2022, the Office responded. Unsatisfied with the Office’s response, Mr. Floyd petitioned this office and this appeal, SPR23/0063, was opened as a result. 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). 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 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, Esq. SPR23/0063 Page 2 January 26, 2023 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 provided a fee estimate of $100. The Office asserts: Our office anticipates that this will take eight hours of work. Regarding the first four free hours of employee work, this time will be consumed by creating the digital searches specific to what you have requested. The searches to be generated based upon your request require several fields as well as several narrowing searches to include specific crimes and specific crimes tried by specific Assistant District Attorneys. The Office asserts that “[i]n sum, these searches are complex and time consuming. Due to these complex queries no records can be produced within the first four hours of work; this office anticipates that that time will be spent in searching.” The Office further asserts that they are “…entitled to a reimbursement for the personnel time, beyond the first four hours expended to review, redact, and produce the records.” Current Appeal In his appeal, Mr. Floyd asks that “all fees assessed be waived” because he is indigent, “[t]he records are not for [his] own commercial use or benefit…[and] their timely and full production and disclosure is in the interest of the public.” Mr. Floyd is advised that while a record custodian may waive applicable fees, under the criteria in 950 C.M.R. 32.07(2)(k)(l-3), the Supervisor has no authority to order that a record custodian do so. 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 the Office requires 4 hours to search for responsive records. As such, the Office must provide further details regarding the fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Further, the Office indicates that they intend to redact the records but do not state whether their proposed redactions are required by law. See G. L. c. 66, § l0(d)(iii) (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). The Office must clarify this matter. 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 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 to produce records sought more efficiently and affordably).

Courtney Almeida, Esq. SPR23/0063 Page 3 January 26, 2023 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. Floyd 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: Lewis E. Floyd, III