Andrew Quemere v. Massachusetts Department of State Police (SPR 20231087)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 5, 2023 SPR23/1087 Kevin Marshall Research Analyst, Public Records Unit Office of the Chief Legal Counsel Massachusetts State Police 50 Maple Street Milford, MA 01757 Dear Mr. Marshall: I have received the petition of Andrew Quemere appealing the response of the Department of State Police (Department) to his request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 12, 2023, Andrew Quemere requested “[a]ll emails containing” a list of specified search terms. Prior Petition This request was the subject of a previous petition to charge fees. See SPR23/1083 Determination of the Supervisor of Records (May 26, 2023). In my May 26th determination, I found that the Department had met its burden to assess a fee. The Department provided a response on May 22, 2023. Unsatisfied with the response, Mr. Quemere petitioned this office and this appeal, SPR23/1087, was opened as a result. Fee Estimates 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

Kevin Marshall SPR23/1087 Page 2 June 5, 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). The Department’s May 22nd Fee Estimate In its May 22, 2023 response, the Department provided a fee estimate of $30,750.00. In its May 22nd response, the Department stated: ….in total, there are at least 36,925 items that the Department must review and redact, this will impose an onerous burden on the Department, which will have to devote limited resources to review and redact these records. The Department further explains: Given the volume of information requiring review, the Department’s good faith estimate of cost amounts to $30,750. This amount is based upon the following: with respect to the portion of the request concerning email communication, the Department will be required to review each of the 36,925 email items. The Department estimates, conservatively and in good faith, that it will expend an average of 2 minutes to review each of these. Accordingly, the good faith estimates for reviewing the 36,925 items is calculated at (2 min. x 36,925 = 73,850 minutes; 73,850 minutes/60 minutes = approximately 1,230 hours) at a rate of $25/hour resulting in a total cost of $30,750. Current appeal In his appeal, Mr. Quemere states: …the department is an agency and is therefore required to provide the first four hours of labor at no charge. The department’s estimate did not subtract this time, as required by law. The department must subtract this time from its estimate. The department is also charging $25 per hour, the maximum allowed under state law. The department does not say what types of personnel will be reviewing the records and whether they are the lowest-paid employees capable Although the Department has estimated that the process of compiling, reviewing, and preparing requested records requires 1,230 hours to produce responsive records, it is not clear from the Department’s estimate how much time is allocated to search, and how much time is allocated for segregation, and redaction of the records. As such, the Department must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable).

Kevin Marshall SPR23/1087 Page 3 June 5, 2023 Further, The Department’s fee estimate lacks confirmation that the rate of $25 per hour is of the lowest paid employee who is capable of performing the task(s) and whether the first four hours of employee time to search for, compile, segregate, redact or reproduce the record or records has been factored into the fee estimate. For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fee assessed in its May 22nd estimate is consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Department is ordered to provide Mr. Quemere with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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: Andrew Quemere