Jennifer Diggles v. Department of State Police Crime Laboratory (SPR 20231581)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 14, 2023 SPR23/1581 Shane T. O’Sullivan, Esq. Massachusetts State Police Crime Laboratory Office of Alcohol Testing 124 Acton Street Maynard, MA 01754 Dear Attorney O’Sullivan: On July 11, 2023, this office received your petition on behalf of the Department of State Police Crime Laboratory (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, Attorney Jennifer H. Diggles, of The Law Offices of Joseph D. Bernard, P.C. G. L. c. 66, § 10(c). On May 31, 2023 and June 9, 2023, Attorney Diggles requested records concerning a breath test performed on an individual on December 9, 2010, at the Wilbraham Police Department and a breath test performed on an individual on February 16, 2009, at the Agawam Police Department, respectively. Petition to Assess Fees – Agencies 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 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

Shane T. O’Sullivan, Esq. SPR23/1581 Page 2 July 14, 2023 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 – 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 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). Current Petition In its July 11th petition, the Department states that it has “conducted a thorough search of numerous digital and physical files possessed by the Office of Alcohol Testing and [has] identified 91 potentially responsive documents.” The Department further argues the following in support of its request to charge for segregation and redaction under Exemption (a): Given the subject matter of the of the [sic] documents requested by attorney Diggles, it is likely that some of these documents contain information regarding criminal offender record information that must be redacted pursuant to G.L. c. 4, § 7, para. 26 and G.L. c. 6, § 167. Fulfilling such an obligation requires a careful review and segregation of records intended for disclosure. The fee estimate provided is for the review, segregation and redaction of all 91 documents. Since the segregation and redaction process is required by law, the Department is entitled to charge a fee for the cost of production and does not view this petition

Shane T. O’Sullivan, Esq. SPR23/1581 Page 2 July 14, 2023 as a necessary prerequisite to charging a fee to the requestor and has communicated its fee estimate to the requestor separately. Please be advised, records custodians may assess fees for time spent segregating or redacting records where such segregation or redaction is required by law. See 950 C.M.R. 32.07(2)(d) (stating that fee for segregation or redaction is permissible when approved by Supervisor or when required by law). Additionally, a records custodian shall not assess a fee for a public record unless the records custodian responded to the requestor within 10 business days under G. L. c. 66, § 10(b). See G. L. c. 66, § 10(e). Where the Department only seeks to assess fees pursuant to Exemption (a) of the Public Records Law, I find it unnecessary to opine on whether the Department may assess fees for segregating and redacting the records. Conclusion In light of the above, it is unnecessary to opine on the Department’s petition for permission to charge for time spent segregating or redacting responsive records. Accordingly, I will consider this matter closed. Sincerely, Manza Arthur Supervisor of Records cc: Attorney Jennifer H. Diggles