Sarah Sherman-Stokes v. Plymouth County Sheriff's Office (SPR 20241904)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 9, 2024 SPR24/1904 Patrick C. Lee, Esq. General Counsel Plymouth County Sheriff’s Department 24 Long Pond Road Plymouth, MA 02360 Dear Attorney Lee: On July 3, 2024, this office received your petition on behalf of the Plymouth County Sheriff’s Department (Department) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, it is my understanding that the Department furnished a copy of the petition to the requestor, Sarah Sherman-Stokes. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On June 19, 2024, Ms. Sherman-Stokes requested “[a]ll grievance complaints submitted by individuals detained at PCCF by Immigration and Customs Enforcement (“ICE”) between January 1, 2008 through the date of this request.” Petition to assess fees – Agencies A fee shall not assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records (Supervisor) under a petition. G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my understanding that this request was not made for a commercial purpose. 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

Patrick C. Lee, Esq. SPR24/1904 Page 2 July 9, 2024 The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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. 32.06(4). Current Petition In its petition, the Department requests permission “to assess fees for segregation and redaction of records responsive to the attached request[.]” In support of its request, the Department provides the following information: The requester seeks production of approximately 1040 grievances over a 16 year period. Responsive records include grievances filed by identified individuals. While the Massachusetts criminal offender record information (CORI) law does not apply to those held as civil immigration detainees, the individuals retain a privacy interest in their records protected by G.L c. 4 §7 cl. Twenty-sixth (c), which provides an exemption for “any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of privacy.” Further, 8 CFR 236.6 states: “No person, including any state or local government entity or any privately operated detention facility, that houses, maintains, provides services to, or otherwise holds any detainee on behalf of the Service (whether by contract or otherwise), and no other

Patrick C. Lee, Esq. SPR24/1904 Page 3 July 9, 2024 person who by virtue of any official or contractual relationship with such person obtains information relating to any detainee, shall disclose or otherwise permit to be made public the name of, or other information relating to, such detainee.” Incarcerated persons use the grievance process to raise challenges to their conditions of confinement in a broad range of areas, including religious practice, medical needs, and accommodations for those with disabilities. Public dissemination of such private grievances would undermine the confidentiality of the process and deter incarcerated persons from filing grievances. In light of the information provided in the Department’s petition, I find the Department has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, I find that to the extent the responsive records contain the exempt information described above, the Department may assess a fee for segregation and redaction. Please note, Ms. Sherman-Stokes has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Sarah Sherman-Stokes