Dan Griffin v. Department of State Police (SPR 20241514)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 3, 2024 SPR24/1514 Allison Mondello Records Access Officer Massachusetts Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Dan Griffin 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 March 7, 2024, Mr. Griffin requested the following: [1.] All form SP 636 for officers assigned to the BAT bus for the dates of 12/12/2017-1/9/2019 [2.] Cruiser radio log records for the dates of 12/12/2017-1/9/2019 for [named individuals] [3.] Any and all documents related to an Inspector general audit of Troop A, 4 hours highway safety OT grant initiatives for the years 2015-2018[.] The Department responded on March 21, 2024, providing a fee estimate. Unsatisfied with the response, Mr. Griffin petitioned this office and this appeal, SPR24/1514, 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). 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 SPR24/1514 Page 2 June 3, 2024 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). The Department’s May 21st Fee Estimate In its May 21, 2024 response, the Department provided a fee estimate of $4,216.75, and stated: [T]he Department will have to spend time compiling the records by digitalizing each potentially responsive record. It will take approximately 6 hours to digitalize 2,000 potentially responsive records. Total cost for compiling the records= $25 per hour; 25 x 6 = $150 … 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 M.G.L. c. 4, § 7, cl. 26(a). Segregation time is required for the Department to review the 2,295,961 potentially responsive records because these documents are reasonably likely to contain information that is protected from public disclosure as required by law, including: [1.] Home Addresses and Telephone Numbers of Public Safety Personnel G. L. c. 66, § 10B. . .[;] [2.] Reports of Domestic Violence G. L. c. 41, § 97D . . .[;] [3.] M.G.L. c. 6, § 172, the Criminal Offender Record Information (“CORI”) statute[;] [4.] Juvenile names and personal identifying information. . . G.L. c. 119, §§1-84 . . . G.L. c. 71, §34D . . . G.L. c. 276, §100B . . . G.L. c. 120, §21 . . . G.L. c. 209A, §8 . . .[;] [5.] Mental health or substance abuse information . . . G.L. c. 111E, §18 . . . G.L. c. 123, §36 . . .[; and] [6.] M.G.L. c. 214, § 1B, Right of Privacy. . . . Additionally, the Department further breaks down its fee estimate as follows: The Department estimates that it would take approximately seven (5) minutes to review each record and to segregate and make the redactions as described above. Accordingly, the Department estimates that it would take approximately 166.67 hours [based upon 2,000 potentially responsive records X 5 minutes to review =

Allison Mondello SPR24/1514 Page 3 June 3, 2024 10,000/60 = 166.67 hours] to segregate and redact all the potentially responsive records, resulting in a cost of four thousand, sixty-six, and seventy-five cents [166.67 hours - 4 hours X $25 per hour (4 hours deducted per statute results in 166.67 hours) = $4,066.75]. Total cost for segregating or redacting the records= $4,066.75 In total, the Department’s fee estimate to produce the potentially responsive records is $4,216.75. Current Appeal In his appeal, Mr. Griffin states, “[a]lthough I have intimate knowledge of the amount of work needed to obtain these records, the agency still insists on a fee over $4 thousand dollars.” Although the Department has estimated that it will take 166.67 hours to segregate and redact the records, it is unclear how the Department requires this many hours to produce the records. In the Department’s response, it states that “. . . it would take approximately 166.67 hours [based upon 2,000 potentially responsive records X 5 minutes to review = 10,000/60 = 166.67 hours] to segregate and redact all the potentially responsive records[.]” Further in the Department’s response, it states that “[s]egregation time is required for the Department to review the 2,295,961 potentially responsive records[.]” Based on the Department’s response, it is uncertain whether the fee estimate is based on a calculation of 2000 responsive records or a calculation of 2,295,961 records. The Department must clarify. Further, where the Department states that “it would take approximately seven (5) [sic] minutes to review each record and to segregate and make the redactions…[,]” I find that it is unclear how many minutes per page the Department requires to review the responsive records. The Department must clarify whether the 5 minutes is required per page or per record. If the Department is assessing 5 minutes per page, I find it is not clear how the Department requires 5 minutes to review each page of the responsive records. If it is per record, I find the Department must clarify how many pages there are per record. The Department must clarify. Additionally, the Department’s fee estimate lacks confirmation that the rate of $25 per hour is of the lowest paid employee who is capable of performing the task(s). Accordingly, 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. Griffin and the Department to communicate further in order to facilitate producing records efficiently and affordably. See 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).

Allison Mondello SPR24/1514 Page 4 June 3, 2024 Conclusion Accordingly, the Department is ordered to provide Mr. Griffin 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: Dan Griffin Holly Elworthy