Todd Wallack v. Bristol County District Attorney's Office (SPR 20230400)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 15, 2023 SPR23/0400 Courtney Almeida, Esq. Assistant District Attorney Records Access Officer Bristol County District Attorney’s Office 888 Purchase Street New Bedford, MA 02740 Dear Attorney Almeida: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Bristol County District Attorney’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 24, 2023, Mr. Wallack requested “[a]n electronic list of cases the district attorney’s office has prosecuted since Jan. 1, 2022, including all publicly available columns/fields.” On February 1, 2023, The Office responded, providing a fee estimate. Objecting to the fees, Mr. Wallack petitioned this office and this appeal, SPR23/0400, was opened as a result. On March 10, 2023, the Office provided a further response. Mr. Wallack was unsatisfied with the response and requested that this office keep the case open. 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 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. SPR23/0400 Page 2 March 15, 2023 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). 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 Office’s February 1st and March 10th responses In its February 1, 2023 response, the Office provided Mr. Wallack with a $200 fee estimate and stated the following: Our office has assessed a fee for eight hours. In sum our office anticipates that it will take ten hours for the queries to be produced and the records you have asked for to become available in a table which may be provided to you. Further, our office must redact both juvenile records and Grand Jury records. See G.L. c. 4 § 7, cl. 26(a); G.L. c. 119, § 60A; Mass. R. Crim. P. 5 (d). Additionally, our office must separate the docket numbers from the remaining records. Attorney General v. District Attorney for the Plymouth District, 484 Mass. 260, 268-272 (2020) citing G.L. c. 6, § 167, et al. See also G.L. c. 4, § 7, cl. 26(a). Our office anticipates that this will take two hours to complete. Therefore, in sum your records request will require twelve hours of work. In accordance with Public Records Law our office is not charging for the first four hours of work. In its March 10, 2023, supplemental response the Office reiterated its fee estimate and explained the following: Our office informed Mr. Wallack that segregation of responsive records will take this office ten hours of work. Furthermore, our office explained that to redact information required by law, such as Grand Jury records and juvenile records, as well as producing a separate sheet of docket numbers will take two hours of work. See G.L. c. 4, § 7, cl. 26(a) (“specifically or by necessary implication exempted from disclosure by statute”); G.L. c. 119, § 60A; Mass. R. Crim. P. 5 (d). See also Attorney General v. District Attorney for the Plymouth District, 484 Mass. 260, 268-272 (2020) citing G.L. c.6, § 167, et al. See also G.L. c. 4, § 7, cl. 26(a). In total, this request will require twelve hours of work. Our office has not assessed a fee for the first four hours as required by law. G.L. c. 66, §10(d)(ii); 950 C.M.R. 32.07(2)(1). Therefore, our office has assessed a fee for the remaining eight hours. As explained in our letter to Mr. Wallack dated February 1, 2023, our office has no past search which will produce a responsive record to his request. Specifically, his request is seeking information related to January 11, 2022, through the

Courtney Almeida, Esq. SPR23/0400 Page 3 March 15, 2023 present. Our office has not previously responded to an inquiry requiring these specific dates therefore, no previous search will produce responsive records to his request. In the Office’s February 1st fee estimate, it appears the Office is assessing a fee for 12 hours to search for, segregate, and redact the requested records. In the Office’s March 10th estimate, the Office does not mention the task of searching the records, but indicates a fee for segregating the records. Hence, it is unclear why the Office requires that amount of time to complete this task. The Office must provide additional information explaining why the estimated amount of time is required and how many hours it is allocating to searching, segregating and/or redacting the responsive records. The Office states that it will require two hours for redaction and cites G. L. c. 4 § 7, cl. 26(a), G. L. c. 119, § 60A, and Mass. R. Crim. P. 5 (d) for redactions required by law. I find that the Office must clarify how many minutes per page it requires to redact the records. Further the Office has not described how many responsive records it has in its possession. The Office must clarify these matters. The Regulations provide that in cases where necessary to reproduce the requested records, a records access officer may charge a fee to search for, compile, segregate, redact or reproduce a record requested based on the hourly rate of the lowest paid employee who is capable of performing the task. G. L. c. 66, § 10(d); see also 950 C.M.R. 32.07(2). Although the Office claims that it would charge an hourly rate of $25, it is unclear whether the Office has used the hourly rate of the lowest paid employee capable of performing the task. See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.07(2)(i). The Office must clarify this matter. Conclusion Accordingly, the Office is ordered to provide Mr. Wallack with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack