Michael Corbin v. Department of Correction (SPR 20240744)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 25, 2024 SPR24/0744 Kate Silvia Communications Director Department of Correction Legal Division 70 Franklin Street, Suite 600 Boston, MA 02110 Dear Ms. Silvia: I have received the petition of Michael Corbin appealing the response of the Department of Corrections (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Mr. Corbin requested, “[r]edacted copies of all complaints against the following [identified officer].” The Department provided a response on February 26, 2024. Unsatisfied with the Department’s response, Mr. Corbin petitioned this office and this appeal, SPR24/0744, 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. 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. 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

Kate Silvia SPR24/0744 Page 2 March 25, 2024 32.06(4). The Department’s February 26th Fee Estimate In its February 26, 2024 response, the Department provided a fee estimate of $258.75 and stated: This amount includes 14.35 hours at $25.00 per hour, less the first 4 hours which is at no cost. This time is necessary to segregate and redact the requested documents at 3 minutes per page for 861 pages. These records contain criminal offender record information (CORI) which needs to be redacted… Please be advised that $25.00 is the capped hourly rate. No employee who is capable of performing this task makes less than $25.00 per hour… Current Appeal In his appeal, Mr. Corbin states, “I cannot afford this fee.” Fee Waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: 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. Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). Although the Department has estimated that the process of compiling, reviewing, and preparing requested records requires 14.35 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. Additionally, it is unclear why the Department requires 3 minutes per page to redact the responsive records. Accordingly, the Department must provide additional information regarding the tasks involved in producing these records and provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable).

Kate Silvia SPR24/0744 Page 3 March 25, 2024 Conclusion Accordingly, the Department is ordered to provide Mr. Corbin 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Michael Corbin