Tania Cooper v. Bristol County District Attorney's Office (SPR 20230328)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 27, 2023 SPR23/0328 Courtney Almeida, Esq. Assistant District Attorney Bristol County District Attorney’s Office 218 South Main Street Fall River, MA 02721 Dear Attorney Almeida: On February 17, 2023, this office received your petition on behalf of the Bristol County District Attorney’s Office (Office) requesting permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, the Office furnished a copy of this petition to the requestor. Id. On February 3, 2023, Tania Cooper, of Attraction, submitted a public records request seeking records regarding an identified case. 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). As discussed below, it is my determination that this request was made for a commercial 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 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. SPR23/0328 Page 2 February 27, 2023 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 petition dated February 17, 2023, the Office states: There are approximately 1,749 pages of transcripts [regarding this case]. Specifically, [the] office expects redactions to fall within the following exemptions: 1. Privacy exemption: by their nature these investigative reports will likely include information that if released would constitute an unwarranted invasion of privacy, including dates of birth, social security numbers, telephone numbers, and names and contact information of relatives. G.L. c. 4, s.7, cl.26(c); See also G.L. c. 214 s. 1B (privacy statute); G.L. c. 4, § 7, cl. 26 (a) (exemption as set forth in statutes). In its petition, the Office also argues “that this request is very clearly for commercial purposes in that the requestor states she is from a production company and is seeking this information in relation to a current production.”

Courtney Almeida, Esq. SPR23/0328 Page 3 February 27, 2023 The term “commercial purpose” as used in the Public Records Law shall mean: the sale or resale of any portion of the public record or the use of information from the public record to advance the requester’s strategic business interests in a manner that the requester can reasonably expect to make a profit, and shall not include gathering or reporting news or gathering information to promote citizen oversight or further the understanding of the operation or activities of government or for academic, scientific, journalistic or public research or education. G. L. c. 66, § 10(d)(ix). In light of the Office’s petition and the correspondence provided, it is my understanding that the request made by Ms. Cooper meets the statutory definition of “commercial purpose” within the Public Records Law. See G. L. c. 66, § 10(d)(ix); see also SPR20/2599 Determination of the Supervisor of Records (January 5, 2021). Conclusion Based on the Office’s petition and my finding that the request is for a commercial purpose, I approve the Office’s petition to assess a fee for time spent segregating and redacting responsive records. See G. L. c. 66, § 10(d)(iv). Please note that an agency may not assess a fee for the first four hours of employee time to search for, compile, segregate, redact or reproduce records. See G. L. c. 66, § 10(d)(ii). Please note, Ms. Cooper 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: Tania Cooper