Colman Herman v. Suffolk County Sheriff's Department (SPR 20231010)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 30, 2023 SPR23/1010 Melissa Garand, Esq. 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[.] Previous Appeal This request was the subject of a previous appeal. See SPR23/0723 Determination of the Supervisor of Records (April 26, 2023). In my April 26th determination, I ordered the Department to provide Mr. Herman with a response to his request. On May 9, 2023, the Department responded. Unsatisfied with the Department’s response, Mr. Herman petitioned this office and this appeal, SPR23/1010, was opened as a result. While this appeal was pending, the Department provided a supplemental response dated May 15, 2023. 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. SPR23/1010 Page 2 May 30, 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. 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 May 9th Response In its May 9, 2023 response, the Department continues to provide a fee estimate of $100. The Department states: The Department had to locate and gather a years’ worth of records and receipts being requested. Some of these records had to be gathered from different departments which involved more than one person locating and compiling the records. The number of pages located to date amounts to 85 pages, which will need to be segregated for redaction and copying. Further, in following up with our Finance Department I have learned that the original estimate of eight hours was incorrect, and that the time spent to date on processing this request as already exceeded eight (8) hours. Despite the fact that the Department underestimated the preliminary fee it will waive any additional fees that it is entitled to assess in order to complete this request. In a supplemental response dated May 15, 2023, the Department argues: Sheriff Tomkins is not refusing to produce expense records. Mr. Herman continues to request that the Supervisor of Public Records find that he is entitled to the records at a reduced charge or at no charge. However, the Department has already agreed to waive any additional fees in light of the fact that the Department actually underestimated the amount of time that it would take to gather a years’ worth of expense records, which Mr. Herman outlined to include[]: expense

Melissa Garand, Esq. SPR23/1010 Page 3 May 30, 2023 reports, including backup receipts, credit card statements, including back up receipts, automobile expense records, including backup receipts, and all other records that document Sheriff Tompkins’ expense records, including backup receipts. While the Department’s initial assessment of $100.00 was based upon a total of eight hours (with the first four hours free) to search for, copy, or segregate the records, the Department has learned that the time to gather the records has already exceeded eight hours of time. As explained to Mr. Herman he is not being treated any differently than any other reporter, individual or agency who seeks public records from 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. The Department respectfully requests that the Supervisor of Public Records deny Mr. Herman’s appeal were its fee is not excessive, and where the Department has agreed [to] waive any additional fees in order to produce the records. Current Appeal In his appeal, Mr. Herman argues that the Department fails to 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. It does continue to be 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. Additionally, it is unclear how many hours each task, such as locating the records, reviewing the records, and segregating or redacting the records, will take. Further, it is unclear how many minutes per page it will take to segregate and redact the responsive records. Mr. Herman also contends that he “should not have to pay as [a] result of the disorganized way [the Department] maintain[s] [its] expense records.” Please be advised that the Department cannot charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § l0(a); see G. L. c. 66, § l2; see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). In a further response dated May 16, 2023, Mr. Herman states that the Department “fails to state the hourly rate of personnel who would work on my public records request.” However, the Department in its April 10, 2023 response stated, “[t]he preliminary fee for this request is the sum of one hundred dollars ($100.00), calculated by the time estimate for the lowest paid person

Melissa Garand, Esq. SPR23/1010 Page 4 May 30, 2023 that is qualified to comply with the request: 4 hours at $25 per hour, in addition to the initial four hours for a total of 8 hours.” I continue to 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