Colman Herman v. Suffolk County Sheriff's Department (SPR 20231295)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 29, 2023 SPR23/1295 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 Appeals This request was the subject of previous appeals. See SPR23/0723 Determination of the Supervisor of Records (April 26, 2023) and SPR23/1010 Determination of the Supervisor of Records (May 30, 2023). In my May 30th determination, I ordered the Department to provide Mr. Herman with a response to his request. On June 13, 2023, the Department responded. Unsatisfied with the Department’s response, Mr. Herman petitioned this office and this appeal, SPR23/1295, was opened as a result. While this appeal was pending, the Department provided a supplemental response dated June 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. SPR23/1295 Page 2 June 29, 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 June 13th Response In its June 13, 2023 response, the Department continues to provide a fee estimate of $100. The Department states: As a response to the Supervisor of Public Records request, the Department reiterates that the $100.00 fee is not based upon the segregation or redaction of records but is based on time (8 hours) spent compiling the records. G.L. c. 66, § 10(d)(ii). The Department also reiterates that it is committed to allowing the public access to its records and will provide you with access to the expense records of the Sheriff of Suffolk County for the time period April 1, 2022 to March 31, 2023. This includes all expense reports and back up receipts, credit card statements, including back up receipts, automobile expense records, and all other expense records and back up receipts. Please be advised that your request for these records required that the Department compile records over two fiscal years and from different databases. Despite your statement that the Department’s records are disorganized that is not the case, the Department’s management of its records is sufficient, and you are not being charged for mismanaged records. Further, while the original estimate of eight hours was incorrect, and the time spent to date on processing this request exceeds eight (8) hours the Department reiterates that it will waive any additional fees that it is entitled to assess in order to complete this request.

Melissa Garand, Esq. SPR23/1295 Page 3 June 29, 2023 In a supplemental response dated June 15, 2023, the Department argues: The Department has consistently and repeatedly made clear to Mr. Herman that the initial fee of $100.00 was based upon compiling the expense records of Sheriff Tompkins. Further, in the Department’s conversation with Mr. Herman he was specifically informed that the fee was based upon the compilation of the records only. During that conversation Mr. Herman was also informed that the General Counsel’s office had not yet examined the 85 pages of compiled records, and therefore had not yet determined if they would even need redacting. As a result of this conversation, Mr. Herman mistakenly concluded that because it had taken the Department eight (8) hours to compile the records they must then be disorganized, and he argued that point in his second appeal. The Department’s position on this matter has remained clear. In its initial fee letter the Department determined that it would take a minimum of eight hours to compile the records calculated by the time estimate for the lowest paid person that is qualified to comply with the request: 4 hours at $25 per hour with the first four hours free. However, the time that the Department has spent to date compiling the records has actually exceeded eight hours. Mr. Colman has been repeatedly informed that the Department will waive the cost of any additional fees that it is entitled to collect. Lastly [the Department’s] records are not disorganized and Mr. Colman is not being excessively charged for the compilation of its records. The Department is in compliance with G.L. c. 66, § 12, which requires that its records be “…so arranged that they may be conveniently examined and referred to.” As previously 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]. Current Appeal In his appeal, Mr. Herman argues: Eight hours to find the responsive records is outrageous and goes to the fact that Sheriff Tompkins’ expense records are disorganized, and as you write in your May 30, 2023 determination in SPR231010: 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).

Melissa Garand, Esq. SPR23/1295 Page 4 June 29, 2023 Accordingly, please order Sheriff Tomkins to reduce the fee for the responsive records. In a further response dated June 15, 2023, Mr. Herman contends, “It is clear that the responsive records are not properly organized.” Although the Department states that it has taken eight hours to compile the records, the Department must further explain why it has taken eight hours to compile the records. The Department must elaborate on its use of the different databases in conducting the searches. 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