Colman Herman v. Suffolk County Sheriff's Department (SPR 20230723)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 26, 2023 SPR23/0723 Melissa Garand Assistant General Counsel Suffolk County Sheriff’s Department 200 Nashua Street Boston, MA 02114 Dear Attorney Garand: I have received the petition of Colman Herman appealing the response of the Suffolk County Sheriff’s Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 31, 2023, Mr. Herman requested: [1] Records of all the expenses that [a named individual] has incurred in his capacity as sheriff of Suffolk County for the period April 1, 2022 to the present. 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 [a named individual’s] expenses, including back-up receipts…. [2] The written employee reimbursement policy of the Suffolk County [S]heriff’s [D]epartment[.] On April 10, 2023, the Department responded. Unsatisfied with the Department’s response, Mr. Herman petitioned this office and this appeal, SPR23/0723, was opened as a result. While this appeal was pending, the Department submitted a supplemental response dated April 12, 2023. 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. 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

Melissa Garand, Esq. SPR23/0723 Page 2 April 26, 2023 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 Department’s April 10th Response In its April 10, 2023 response, the Department provided a fee estimate of $100. The Department states: The preliminary fee for this request is the sum of [$100.00], calculated by the time estimate for the lowest paid person that is qualified to comply with the request: 4 hours at $25 per hour, in additional to the initial four hours for a total of 8 hours. A fee has not been assessed on the first 4 hours of work required to comply with the request. In a supplemental response dated April 12, 2023, the Department argues: Mr. Herman requests that the Supervisor of Public Records find that he is entitled to the records at no charge based upon the fact that “the public would be interested in the expense records of [a named individual.]” However, Mr. Herman’s entitlement to the records is no different than any other individual or agency who seeks public records for the [Department]. Mr. Herman’s request should be denied because the [Department] has a consistent fee policy in place, and all other requestors, who seek public records from the Department, comply with this process, and pay the fee when assessed. Mr. Herman should be treated no differently than any other requestor, and therefore the Department respectfully requests that the Supervisor of Public Records deny Mr. Herman’s appeal. Current Appeal In his appeal, Mr. Herman argues: “…[The] [S]upervisor of [R]ecords shall consider the public interest served by limiting the cost of public access to the records, the financial ability of the

Melissa Garand, Esq. SPR23/0723 Page 3 April 26, 2023 requestor to pay the additional or increased fees and any other relevant extenuating circumstances.” M.G.L. c. 66, § 10(d)(iv)(1)[.] In that regard, the public would be interested in the expense records of [a named individual] given that he has been cited twice by the State Ethics Commission for violating the state conflict of interest law…. Accordingly, please order [the Department] to produce [the] expense records at no charge. In a supplemental response dated April 12, 2023, Mr. Herman contends: [The Department] ignores the fact that I am a reporter, and as such, there would be wide dissemination of the information on how [the named individual] spends the taxpayer money in his expense account….I am a reporter whose work is in the public interest and who does not have any money to pay for public records….[The Department] fails to address the need for such a large fee. Although the Department has estimated that the process of responding to the records request will take 8 hours of employee time, it is unclear how many hours the Department has allocated for each task, such as locating the records, reviewing the records, and segregating or redacting the records. Further, it is unclear how many pages of responsive records exist and how many minutes per page it will take to segregate and redact the responsive records. Additionally, it is unclear if the Department is redacting the records pursuant to certain exemptions. 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 Department must provide information about whether the responsive records contain information that is required by law to be segregated or redacted, as well as the applicable statutes, if any. Mr. Herman 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. In addition, G. L. c. 66, § 10(d)(iv)(1) provides: [T]he supervisor of records may approve a petition from an agency or municipality to charge for time spent segregating or redacting, or a petition from a municipality to charge in excess of $25 per hour, if the supervisor of records determines that (A) the request is for a commercial purpose; or (B) the fee represents an actual and good faith representation by the agency or municipality to comply with the request, the fee is necessary such that the request could not have been prudently completed without the redaction, segregation or fee in excess of $25 per hour and the amount of the fee is reasonable and the fee is not designed to limit, deter or prevent access to requested public records; provided, however, that:

Melissa Garand, Esq. SPR23/0723 Page 4 April 26, 2023 1. in making a determination regarding any such petition, the supervisor of records shall consider the public interest served by limiting the cost of public access to the records, the financial ability of the requestor to pay the additional or increased fees and any other relevant extenuating circumstances… Thus, this statute that Mr. Herman cites in his appeal relates to fee petitions and not fee estimate appeals. See G. L. c. 66, § 10(d)(iv)(1). 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 Department must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality 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 or municipality to produce records sought more efficiently and affordably). For the reasons discussed above, I find the Department 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 Department 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