Matthew Ross v. Massachusetts Department of State Police (SPR 20242683)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 7, 2024 SPR24/2683 Allison Mondello Public Records Manager Massachusetts Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Mathew Ross appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 15, 2024, Mr. Ross requested: dataset covering all data on calls for service and computer-aided dispatch (CAD), including location, priority, description of incident or type of crime, demographic information of the caller, the badge number of the call-taker, dispatcher and responder officer, the times at which the call was received, officers were dispatched, officers arrived, and the incident was resolved, any notes associated with the call, and any other available data from the Massachusetts State Police from January 1, 2010 (or earliest available) to December 31, 2023 (or latest available). Previous Petition This request was the subject of a previous petition. See SPR24/2146 Determination of the Supervisor of Records (August 5, 2024). In my August 5th determination, I found that the Department had established good cause for a time extension of 20 business days. The Department initially responded on July 27, 2024, acknowledging receipt of the request, and again on August 23, 2024, providing a fee estimate. Unsatisfied with the response, Mr. Ross petitioned this office and this appeal, SPR24/2683, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public 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 SPR24/2683 Page 2 October 7, 2024 records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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. 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). The Department’s Responses In its July 27, 2024, response, the Department stated, “[the Department] received your records request on July 15, 2024. . . . Given the large scope of your request and the time it will take to ensure all potentially responsive records have been located and reviewed, we have petitioned the Secretary of State’s office for an extension to respond beyond the standard 10 days.” In its August 23, 2024 response, the Department provided a fee estimate of $249,900.00 and advised the following: The Department’s fee assessment for your request was calculated as follows:

Allison Mondello SPR24/2683 Page 3 October 7, 2024 Segregate or redact the records: . . . 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 11,347 responsive pages because these documents are reasonably likely to contain information that is protected from public disclosure as required by law, such as:  Home Addresses and Telephone Numbers of Public Safety Personnel G. L. c. 66, § 10B[;]  Reports of Domestic Violence G. L. c. 41, § 97D[;]  M.G.L. c. 6, § 172, the Criminal Offender Record Information (“CORI”) statute[;]  Juvenile names and personal identifying information; and records relating to investigations involving a juvenile are implicitly exempt from disclosure. Please see G.L. c. 119, §§1-84 (care and protection of children proceedings, specifically prohibit the release of information relating to juveniles); G.L. c. 71, §34D (permits the Board of Education to adopt regulations limiting access to student records); G.L. c. 276, §100B (permits the Commissioner of Probation to seal records relative to child delinquency matters); G.L. c. 120, §21 (permits the Department of Youth Services Records to withhold records of a child delinquency commitment) and G.L. c. 209A, §8 (deems 209A records relating to minors as confidential and not subject to public release)[;]  Mental health or substance abuse information about a specific person is implicitly exempt from disclosure. Please see G.L. c. 111E, §18 (drug treatment records are confidential); G.L. c. 123, §36 (mental health patient treatment records “shall be private and not open to public inspection” except in instances involving a judicial order or attorney-patient review); Rep.A.G., Pub.Doc. No. 12 at 91 (1979) (names of patients receiving treatment for alcoholism exempt from disclosure)[;]  M.G.L. c. 214, § 1B, Right of Privacy. Records may involve persons who provide the Department with their personal information such as their dates of birth, license numbers, social security numbers, etc. Some investigations are the product of mental health and/or substance abuse episodes by the complainant or member. As such, the records may contain private information that may result in an unwarranted invasion of privacy if disclosed. The Department estimates that it would take approximately one (1) minute to review each call and to segregate and make the redactions as described above. Accordingly, the Department estimates that it would take approximately 10,000 hours [189 hours based upon 600,000 calls X 1 minute to review=600,000/60= 10,000 hours] to segregate and redact all the potentially responsive records, resulting in a cost of two hundred forty-nine thousand nine hundred dollars [9,996

Allison Mondello SPR24/2683 Page 4 October 7, 2024 hours X $25 per hour (2 hours deducted for compiling the records and an additional 2 hours deducted per statute results in 9,996 hours) = $249,900.00]. Current Appeal In his appeal, Mr. Ross states, “[b]ased on the . . . estimate of $249,900, I believe there is either a fundamental misunderstanding of what I am asking for in this request or an intentional attempt to inflate the costs to prevent releasing records.” G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where Mr. Ross submitted a public records request on July 15, 2024, and the Department provided a fee estimate on August 23, 2024, I find that it is unclear whether the Department complied with G. L. c. 66, § 10(e). Specifically, the Department must demonstrate whether it provided a response to Mr. Ross’s request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request. This office encourages Mr. Ross and the Department to continue to communicate to facilitate providing records more efficiently and affordably. Mr. Ross may wish to narrow the parameters or include factors to enable the search to be processed. 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 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. Ross with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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: Matthew Ross