Ted Daniel v. Massachusetts Department of Transportation (SPR 20231285)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 21, 2023 SPR23/1285 William J. Doyle, Esq. Records Access Officer Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Doyle: On June 13, 2023, this office received your petition on behalf of the Massachusetts Department of Transportation (Department) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor, Ted Daniel. Id. On May 26, 2023, Mr. Daniel requested: [1.] [T]he number of license suspensions the RMV has issued based on license photo anomalies or discrepancies discovered or flagged by facial recognition technology from 2017 to present, broken down by calendar year[;] [2.] [T]he number of license revocations the RMV has issued based on license photo anomalies or discrepancies discovered or flagged by facial recognition technology from 2018 to present, broken down by calendar year[;] [3.] [T]he date of the first license suspension in Massachusetts that occurred as a result of facial recognition technology and/or any documentation or reporting that occurred as a result of that suspension[;] [4.] [T]he written policy and/or protocols, including the review and verification process when a license photo anomaly or discrepancy is discovered by facial recognition software before the RMV acts on a license[;] [5.] [A]ny quarterly reports the RMV has submitted to EOPPS for the use of facial recognition searches as outlined in “An Act Relative to Justice, Equity and Accountability in Law Enforcement in the Commonwealth” - G.L. c.6, § 220[;] [6.] [T]he name of the facial recognition software or technology the RMV uses to scan license photos[;] [7.] [T]he contract/(s) showing the cost of any facial recognition technology used by the RMV[.] 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

William J. Doyle, Esq. SPR23/1285 Page 2 June 21, 2023 Petition to Assess Fees 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. 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 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).

William J. Doyle, Esq. SPR23/1285 Page 3 June 21, 2023 Current Petition In its petition dated June 12, 2023, the Department seeks “permission to charge the requester for time spent segregating and redacting records that are responsive to the request.” In support of its request, the Department states that it has “provided a response and records for Requests 4-6, expect to provide additional records this week for Requests 3 and 7, and are currently in discussions with the requester relative to the estimated time to compile records for Requests 1 and 2.” The Department further explains that, “due to the nature of the records, we believe that all of the responsive records will require redaction as they are “specifically or by necessary implication exempted from disclosure by statute” pursuant to Massachusetts General Laws, Chapter 4, Section 7(26)(a) and contain personal information under Section 7(26)(c).” Under Exemption (c), the Department indicates that the records may contain “personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” In light of the Department’s petition, I find the Department has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the Department may assess a fee for the segregation and redaction of such exempt material. Conclusion Accordingly, I find that to the extent the responsive records contain the exempt information described above, the Department may assess a fee for segregation and redaction. This office encourages Mr. Daniel and the Department to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii). Any subsequent fee estimate from the Department must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Mr. Daniel 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: Ted Daniel

William J. Doyle, Esq. SPR23/1285 Page 4 June 21, 2023