Andrew Quemere v. Department of State Police (SPR 20231419)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 6, 2023 SPR23/1419 Kevin Marshall Research Analyst Public Records Unit 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 eight specified search terms. Prior Petition and Appeal 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 for the production of responsive records. This request was also the subject of a previous appeal. See SPR23/1087 Determination of the Supervisor of Records (June 5, 2023). In my June 5th determination, I found that the Department must revise its fee estimate or provide further explanation of how the fee estimate is consistent with G. L. c. 66, § 10(d). The Department provided a response on June 20, 2023. Unsatisfied with the response, Mr. Quemere petitioned this office and this appeal, SPR23/1419, 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. 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 SPR23/1419 Page 2 July 6, 2023 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). The Department’s June 20th Fee Estimate In its June 20, 2023 response, the Department provided a fee estimate of $30,650.00. The Department stated: … the Department would be tasked with reviewing a minimum of 36,925 items… given our office’s and our agencies’ collaboration with other state and federal agencies on criminal investigations and other matters regarding state and national security, the resulting records undoubtedly contain privileged and exempt information such as intelligence and investigative data, personnel, private, and security related information, as well as information related solely to internal personnel rules and practices of government necessary to withhold to ensure the proper performance of the Massachusetts State Police. These categories of information are specifically exempt pursuant to G.L. c. 4, § 7, cl. 26 (a), (b), (c), (f), and/or (n) and are not subject to public disclosure. Accordingly, the information must be segregated and redacted from the records before the records are produced to a third party such as the requestor. 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-4 hours) =1226 hours at a rate of $25/hour (representing the hourly wage of the lowest paid employee who is capable of performing the task) resulting in a total cost of $30,650.

Kevin Marshall SPR23/1419 Page 3 July 6, 2023 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/or redaction of the records. Further, the Department must provide additional information regarding the tasks involved in producing these records. It is additionally uncertain how the Department requires 2 minutes to review each email. Accordingly, 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). I encourage Mr. Quemere and the Department to communicate further in order to facilitate producing records efficiently and affordably. Mr. Quemere may wish to narrow the parameters or include applicable time periods or factors to enable the search to be processed. 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). 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