Tom Marino v. Massachusetts Parole Board (SPR 20230880)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 16, 2023 SPR23/0880 Stacy Book Records Access Officer Massachusetts Parole Board 12 Mercer Road Natick, MA 01760 Dear Ms. Book: I have received the petition of Tom Marino, of This Week in Worcester, appealing the response of the Massachusetts Parole Board (Board) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 24, 2022, Mr. Marino requested: 1. Information related to the training/presentation made by [a named individual] of [an identified company] on May 24, 2016 including slides presented, handouts distributed to Parole Board staff, recordings, notes taken or other information indicating content of the presentation. 2. Contractual agreement, agreement for services, or other documentation that articulates any relationship between the Massachusetts Parole Board and [a named company] and/or [a named individual] that were in effect at any time between 2016 to present. 3. [Two identified attachments] attached to the email from [a named individual] of [an identified company] to [a named individual] on Wednesday, February 7, 2018 at 9:12:09 PM. 4. [An identified attachment] attached to the email from [a named individual] to [a named individual] of [an identified company] on April 11, 2017, at 11:05:16 AM. 5. Emails between [an identified individual] and individuals with an email address containing [an identified ending], starting with the most recent and proceeding in reverse chronological order[.] On October 5, 2022, Mr. Marino stated: In lieu of the request at # 5, may I please request emails that include the word “Vivitrol” that include other appointed members of the parole board, past or present? Please exclude emails with those with an email address that includes [an 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

Stacy Book SPR23/0880 Page 2 May 16, 2023 identified ending], unless I’ve yet to receive them. If the volume is prohibitive, please inform me of the numbers of emails included in the query. As discussed below, on January 20, 2023, Mr. Marino requested, “emails, from February 2018 to present, which include the word ‘Vivitrol.’ Per your request, I limited the request to emails which include the following individuals…[14 named individuals].” Previous Appeals This request was the subject of previous appeals. See SPR22/2501 Determination of the -- Supervisor of Records (November 18, 2022) and SPR22/2842 Determination of the Supervisor of Records (December 27, 2022). In my December 27th determination, I ordered the Board to provide Mr. Marino with a response to his request. On January 9, 2023, the Board stated, “[t]hus far, multiple responses to your request have been provided. Please identify exactly what you are seeking at this time, so that we may respond accordingly.” On January 9, 2023, Mr. Marino responded. On January 10, 2023, the Board stated, “I am still somewhat confused. For purposes of clarification, would you mind restating exactly what you believe has not been provided/addressed?” On January 10, 2023, Mr. Marino stated, “[d]espite my follow up on Oct. 21, you have declined to respond to my revised request for 62 business days.” On January 11, 2023, the Board stated, “[f]or purposes of a search, please provide the specific Board Member name for the emails that you seek.” On January 11, 2023, Mr. Marino stated, “[e]mails including the following individuals…[14 named individuals].” On January 20, 2023, Mr. Marino reiterated: As there has been some back and forth on this request related to limiting its scope, I wanted to clarify for you the currently pending request. The request is for emails, from February 2018 to present, which include the word “Vivitrol.” Per your request, I limited the request to emails which include the following individuals…[14 named individuals]. On January 23, 2023, the Board responded and stated, “I will pass this information along.” On February 7, 2023, the Board responded and provided a fee estimate. Unsatisfied with the Board’s response, Mr. Marino petitioned this office and this appeal, SPR23/0880, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or

Stacy Book SPR23/0880 Page 3 May 16, 2023 municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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. Fee Estimates - Agencies 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 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 Board’s January 23rd and February 7th Responses In its January 23, 2023 response, the Board states, “[t]hank you, Mr. Marino. I will pass this information along.”

Stacy Book SPR23/0880 Page 4 May 16, 2023 In its February 7, 2023 response, the Board provided a fee estimate of $1,525 to produce the responsive records. The Board stated: [W]e have determined that a charge of $1,525 is necessary to process the clarified request. The amount accounts for employee time to identify, extract, review, redact and copy 1,300 emails. The assessed rate/production time is 3 minutes per email at a rate of $25 per hour, the hourly rate less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for the requested records. This amount also excludes the first four hours of labor involved in this request. This sum is based on the following breakdown: • 3 minutes of time/labor to identify, extract, review, redact and copy 1300 emails = 3,900 minutes or 65 hours • Total number of hours for production of 1,300 = 65 hours – 4 free hours = 61 hours • Hourly rate of $25 (less than the hourly rate of the lowest paid Parole Board employee qualified to do the work) x 61 hours = $1,525. Based on the Board’s February 7th fee estimate, it is unclear why the Board requires the amount of time listed above to produce the requested records. The Board must provide further information on the details regarding the tasks involved, including the time it is allocating to compiling, segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). The Board must clarify these matters, including the time that is needed to perform segregation and redaction as required by law. G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where Mr. Marino submitted a public records request on January 20, 2023, and the Board provided a response on January 23, 2023 which stated, “I will pass this information along[,]” and then provided a fee estimate dated February 7, 2023, I find it is unclear whether the Board complied with G. L. c. 66, § 10(e). Specifically, the Board must demonstrate whether it provided a response to Mr. Marino’s request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request. This office continues to encourage Mr. Marino and the Board to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(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 municipality to produce records sought more efficiently and affordably).

Stacy Book SPR23/0880 Page 5 May 16, 2023 Conclusion Accordingly, the Board is ordered to provide Mr. Marino 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: Tom Marino