Adam Bradley v. Massachusetts Department of State Police (SPR 20231933)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 5, 2023 SPR23/1933 Allison Mondello Primary Records Manager Office of the Chief Legal Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 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 June 27 2023, Mr. Bradley requested, “... a copy of the 2012 and 2014 internal and external audits records relating to the Department’s case no. 2012-110-0192 and Department’s crime laboratory no. 12-09339” The Department responded on July 12, 2023. Unsatisfied with the response, Mr. Bradley petitioned this office and this appeal, SPR23/1933, was opened as a result. 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 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 SPR23/1933 Page 2 September 5, 2023 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 July 12th Response In its response, the Department provided Mr. Bradley with a fee of $4,056.25 and advised that it would take 180.25 hours to search, segregate and redact the records. The Department identified the following records in response to the request: 1. 2014 Internal Audit Records approximately 1,865 pages; 2. 2012 Internal and External Audit Records approximately 1,740 pages The Department stated that it “would take four hours to compile the above records” which is not charged by statute. The Department further advised that it “would take three minutes to review each document identified in the records (1865 +1740 = 3605 pages) and to segregate and make the redactions...” The Department cited Exemption (a) of the Public Records Law to make the redactions and specifically cited G. L. c. 6 § 172, the Criminal Offender Record Information (CORI), G. L. c. 22 § 9, Confidentiality of DNA Records, and G. L. c. 66 § 10B, Firearms Bureau Records. Although the Department has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take approximately 180.25 hours, it is unclear how the Department requires this many hours to produce responsive records. It appears the Department is assessing a fee for segregation and/or redaction of the records. However, it is uncertain how the Department requires 3 minutes to review each document. The Department must clarify the number of pages for each document and the number of records responsive to the request. It is additionally uncertain how the Department requires 4 hours to compile the responsive records. 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). Waiver of fees In his petition, Mr. Bradley contends he is entitled to a waiver of fees because he believes that he lacks the financial ability to pay the full amount of the reasonable fee. Mr. Bradley is advised that while a record custodian may waive applicable fees, under the criteria in 950 C.M.R. 32.07(2)(k)(l-3), the Supervisor has no authority to order that a record custodian do so. In addition, a ruling of indigency by a court of law is inapplicable to requests for records made pursuant to the Public Records Law. See G. L. c. 261, § 27A (defining indigency for civil, criminal or juvenile proceedings or appeals in any court); see also G. L. c. 261, § 27B (allowing any party to file with the clerk an affidavit of indigency and a request for a waiver, substitution or payment by the commonwealth of fees and costs upon a form prescribed by the chief justice of the supreme judicial court). The Public Records Law does not provide for an exception when the party requesting the records is indigent. See G. L. c. 66, § 10(a) (every person for whom a search of public records is

Allison Mondello SPR23/1933 Page 3 September 5, 2023 made shall pay the actual expenses of such search); see also Fierro v. Hiscock, et al., Middlesex Superior Court, C.A. No. 96-7243 (1997) (indigent prisoner not entitled to receive records sought pursuant to the Public Records Law free of charge). Therefore, it is not within my enumerated powers to either require or approve such a waiver. I encourage the parties to communicate in order to facilitate producing records efficiently and affordably. Mr. Bradley may wish to narrow the scope of the request 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 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). For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Department is ordered to provide a response to Mr. Bradley, 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. Mr. Bradley may appeal the substantive nature of the Department’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Adam Bradley