Nadim Saleh v. Bristol County District Attorney's Office (SPR 20230521)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 23, 2023 SPR23/0521 Courtney Almeida, Esq. Assistant District Attorney Bristol County District Attorney’s Office 218 South Main Street Fall River, MA 02721 Dear Attorney Almeida: On March 17, 2023, this office received your petition on behalf of the Bristol County District Attorney’s Office (Office) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Office furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On March 3, 2023, Nadim Saleh requested all phone calls made by a named individual while in custody of the Bristol County Sheriff’s Office. Petition to Assess Fees – Agencies 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). It is my determination that this request was not made for a commercial purpose. 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. SPR23/0521 Page 2 March 23, 2023 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 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 – 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 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 support of its petition, the Office indicates that the responsive records include information exempt from disclosure under Exemptions (a) and (c) of the Public Records Law. Specifically, the Office argues that “[t]he recordings include voices of individuals other than the defendant’s, therefore dissemination of these recordings would constitute an unwarranted invasion of those individuals’ privacy rights.” The Office goes on to argue that it “is required to redact all voices of individuals other than the defendant pursuant to M.G.L c. 214 § 1B, M.G.L. c. 4 § 7, cl. 26 (a) as well as M.G.L. c. 4 § 7, cl. 26 (c).” In its petition, the Office also states the following: Although our office is currently denying the request, if our office is ordered to provide such records our office is submitting a petition to [the Supervisor of Public Records] for the assessment of a reasonable fee.

Courtney Almeida, Esq. SPR23/0521 Page 3 March 23, 2023 Conclusion In this case, where the Office does not currently intend to provide responsive records, I find it is unnecessary to opine on the Office’s petition at this time. Please note, Nadim Saleh 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(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Nadim Saleh