Colman Herman v. Massachusetts Department of State Police (SPR 20241399)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 22, 2024 SPR24/1399 Allison Mondello Public Records Manager Massachusetts Department of State Police General Headquarters 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Colman Herman 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 4, 2024, Mr. Herman requested, “…copies of any and all communications sent by and/or received by [an identified officer] for the period December 1, 2022 to December 24, 2022.” On May 8, 2024, the Department provided a response, including a fee estimate. Unsatisfied with the Department’s response, Mr. Herman petitioned the Supervisor of Records, and this appeal, SPR24/1399, was opened. Fee Estimates – Agencies If there are any fees associated with a response a written, good faith estimate must be 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. 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 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 SPR24/1399 Page 2 May 22, 2024 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). 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Department’s May 8th fee estimate In its May 8th fee estimate, the Department estimates that it will require 55 hours to produce responsive records, for a total estimated cost, less four hours, of $1,275. The Department provided a further breakdown of its estimate as follows: The Department estimates that it would take approximately three (3) minutes to review each page, and to segregate and make the redactions. . . . Accordingly, the Department estimates that it would take approximately 55 hours [1100 of pages x 3(x) minutes = 55 hours] to segregate and redact all the potentially responsive records, resulting in a cost of $1,275 [55 hours– 4 hours x $25 per hour = $1,275]. The Department stated, “…the Department reasonably believes that [responsive records] contain information, the redaction of which is required by law under M.G.L. c. 4, § 7, cl. 26(a).” The Department cited the following statutes under which it believes redactions will be required to be made: G. L. c. 66, § 10B; G. L. c. 41, § 97D; G. L. c. 6, § 172; G. L. c. 119, §§ 1-84; G. L. c. 31, § 34D; G. L. c. 276, § 100B; G. L. c. 120, § 21; G. L. c. 209A, § 8; G. L. c. 111E, § 18; and G. L. c. 214, § 1B. Although the Department has indicated that the time to prepare responsive documents for production results in a calculation of 55 hours, it is unclear why the Department requires three minutes to review each page of the requested records. If there are additional tasks involved, the Department must provide further details regarding what each task entails. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Additionally, the Department has not explained if the hourly rate being used is that of the lowest paid employee with the necessary skill to perform the task. The Department must clarify these matters. 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). I encourage Mr. Herman and the Department to communicate in order to facilitate producing records efficiently and affordably. Mr. Herman may wish to narrow his request. The

Allison Mondello SPR24/1399 Page 3 May 22, 2024 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. Herman with a response to the 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. Mr. Herman may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman