Adam Bradley v. Department of State Police (SPR 20231932)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 5, 2023 SPR23/1932 Allison Mondello Public Records Manager Office of the Chief Legal Counsel Department of State Police 50 Maple Street Milford, MA 01757 Dear Ms. Mondello: I have received the petition of Adam Bradley appealing the response of the Department of State Police (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 26, 2023, the Department received a request from Mr. Bradley dated May 22, 2023, in which he requested “disclosure of Public Records associated with, or related to [two identified case numbers].” On June 9, 2023, the Department provided a response, which included a fee estimate. Unsatisfied with the Department’s response, Mr. Bradley petitioned this office and this appeal, SPR23/1932, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be 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

Allison Mondello SPR23/1932 Page 2 September 5, 2023 provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 9th Response In its June 9, 2023 response, the Department states: Please be advised with respect to [an identified case number], the Middlesex District Attorney’s Office is in the possession and control of the records, including all records that would have been produced by the State Police Detectives Unit assigned to the Middlesex District Attorney’s Office. The Middlesex District Attorney’s Office is the keeper of the records, and you should direct your request for records related to the case to the Middlesex District Attorney’s Office. The Department also provides a fee estimate of $6,973.50. The Department asserts: Compiling the records: Requests 1-9, relate to [a named individual’s] murder. Based on the information contained in the above referenced requests, the Department would have to review the following records that it was able to locate for the [named individual’s] murder:

Allison Mondello SPR23/1932 Page 3 September 5, 2023 Crime Laboratory Materials (approximately 5,400 pages of documents, approximately 806 photographs, and 2 videos, one which is approximately 7 minutes and 17 seconds long and another which is approximately 5 minutes and 1 second long)…. Email search results for request 3 from the Executive Office of Technology Services and Security-380 emails. Email search results for request 7 from the Executive Office of Technology Services and Secuirty-11 emails. The Department would take approximately four (4) hours to compile the records described above (it would be approximately 4-7 hours; however, the Department will utilize 4 hours in this fee assessment). Total hours for compiling the records = 4 hours not charged per statute. Segregate or redact the records: As a state agency with the responsibility for maintaining extensive confidential information, the Department has an obligation to ensure proper procedures are maintained to prevent the dissemination of information that is protected from disclosure by law. Fulfilling such an obligation requires a careful review and segregation of records intended for disclosure. Based on the nature of the requested records, the Department reasonably believes that they contain information, the redaction of which is required by law under [Exemption (a)]. Segregation time is required for the Department to review the records identified above because these records are reasonably likely to contain information that is protected from public disclosure as required by law, including but not limited to:  G.L. c. 6, § 172, the Criminal Offender Record Information (“CORI”) statute. The requests relate to murder investigation records where 4 persons were criminally charged and convicted. As such, the records are likely to contain CORI information exempt from disclosure.  G.L. c. 22E, § 9, Confidentiality of DNA Records. The murder investigation involves DNA testing, and as such the records are likely to contain information exempt from disclosure pursuant to the statute.  G.L. c. 66, § 10B, Firearms Bureau Records. The murder investigation requested involves a criminal firearm charge and as such, the records may include a Firearm Bureau Record exempted from disclosure pursuant to the statute. The Department estimates that it would take approximately three minutes (3) to review each document identified in the records above (Criminal Laboratory

Allison Mondello SPR23/1932 Page 4 September 5, 2023 materials 5,400 pages) and to segregate and make the redactions as described above. Accordingly, the Department estimates that it would take approximately 270 hours [270 hours based upon 5,400 pages of documents x 3 = 16,200/60 minutes in an hour=270 hours] to segregate and redact all the potentially responsive documents. The Department estimates that it would take approximately ten (10) seconds to review each photograph (806 total), and to segregate and make redactions as described above. Accordingly, the Department estimates that it would take approximately 2.23 hours [2.23 hours based upon 806 photographs/6 (10 seconds to review each photograph, 60 seconds in a minute) = 134.3 minutes/60=2.23 hours to segregate and redact all the potentially responsive photographs. The Department estimates that it would take approximately 12 minutes to review the videos and to segregate and make redactions as described above, The Department estimates that it will take approximately 1 minute to review each of the 391 emails. Accordingly, the Department estimates that it would take approximately 6.71 hours [6.71 hours based upon 12 minutes to review the videos + 391 emails x 1 = 403 minutes/60=6.71 hours to segregate and redact all the potentially responsive emails and crime scene videos. Accordingly, the Department estimates that it would take approximately 278.94 hours, to segregate and redact all the potentially responsive records, resulting in a cost of six-thousand, nine hundred and seventy-three dollars, and fifty cents [$6,973.50 based upon 278.94 hours X $25 per hour= $6,973.50]. Total cost for compiling, segregating, or redacting the records = $6,973.50…. Please be advised that the Department denies your request to waive the fees. Current Appeal In his appeal, Mr. Bradley states: [T]he Department avers that the [Middlesex District Attorney’s Office] is in possession and control of the records requested related to [an identified case], and because of that, it then absolves [the Department’s] obligations under the Public Records Law. This is not true….It is unclear whether [the Department] has physical possession, custody or control of these records. Based on the Department’s response, in conjunction with Mr. Bradley’s appeal, it is unclear if the Department possesses records responsive to the request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). To the

Allison Mondello SPR23/1932 Page 5 September 5, 2023 extent that records exist, I find the Department must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Although the Department claims it will take four hours to compile the responsive records, it is unclear why this amount of time is required. The Department must further explain what is required to compile the responsive records. Additionally, although the Department indicates that it would charge an hourly rate of $25, it is unclear whether the Department has used the hourly rate of the lowest paid employee capable of performing the tasks. See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.07(2)(i). It is also uncertain how the Department requires 3 minutes to review each document. 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). I encourage Mr. Bradley and the Department to communicate further in order to facilitate producing records efficiently and affordably. Mr. Bradley may wish to narrow his request. The Department must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency 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 to produce records sought more efficiently and affordably). Waiver of fees In his appeal, Mr. Bradley requests that the fee be waived. Please be advised the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request. Under the Public Records Law, the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. See G. L. c. 66, § 10(d)(v); see also 950 C.M.R. 32.07(2)(k). Conclusion Accordingly, the Department is ordered to provide Mr. Bradley with a response to his 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 the response to this office at pre@sec.state.ma.us.

Allison Mondello SPR23/1932 Page 6 September 5, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Adam Bradley