Craig Tavares v. Department of State Police (SPR 20243110)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 27, 2024 SPR24/3110 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 Attorney Craig Tavares 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 October 10, 2024, Attorney Tavares requested “a copy of any and all internal affairs records … including but not limited to civilian complaints, officers’ reports, and internal affairs reports, that pertain to… [seven named individuals].” Prior Petition This request was the subject of a prior petition. See SPR24/2892 Determination of the Supervisor of Records (October 29, 2024). In my October 29th determination, I found that it was unnecessary to opine on the Department’s petition for an extension of time. The Department responded on October 24, 2024, providing a fee estimate. Unsatisfied with the response, Attorney Tavares petitioned this office and this appeal, SPR24/3110, was opened as a result. 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). 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 SPR24/3110 Page 2 November 27, 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 October 24th Fee Estimate In its October 24, 2024 response, the Department provided a fee estimate of $245.00, and stated the following: 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 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. . . Based on a preliminary search, the Department has located potentially responsive records. Further, the Department estimates that it would take approximately three (3) minutes to review each page of the records, and to segregate and make the redactions as described above. Accordingly, the Department estimates that it would take approximately 13.8 hours [276 (pages) x 3 (minutes) = 828 / 60 = 13.8 hours] to segregate and redact all the potentially responsive records, resulting in a cost of two hundred and forty-five dollars [13.8 – 4 hours x $25 per hour = 245]. Subsequent to the opening of this appeal, on November 19, 2024, the Department sent an additional response to Attorney Tavares and stated, “[t]he Department sent the attached fee assessment on 10/24/24 stating that potentially responsive records have been located but due to the expansive scope of the request, and the time it would take to fulfill, the Department has

Allison Mondello SPR24/3110 Page 3 November 27, 2024 assessed a fee in accordance with M.G.L. c. 66, §10. The Department has no[t] produced any records as the fee has not been paid yet.” Current Appeal In correspondence to this office on November 15, 2024, Attorney Tavares states the following: The records were requested on October 10th of 2024. After receiving no response, I followed up on October 22nd of 2024, to inquire about the delay and lack of a response. The Department subsequently petitioned for a twenty-day extension, given the type of records sought (IA) and the scope of the request. On October 24th, I assented to a twenty-day extension, so the Supervisor of Records did not have to opine on the Department’s petition. Presently, twenty-two days after the extension, I have received no records nor any response from the Department related to the request. Given it is thirty-six days after the initial request, and twenty-two days after the Department sought a twenty-day extension, I am compelled to appeal and suggest that the lack of a response by the Department is effectively a blanket denial of the request. … I came across the Fee Estimate today in the Portal. I missed it on 10/24 because the Department was looking for 20 days extension, so a fee was not focus. Indeed it was unclear what if any records would ever be provided. I asked MSP today if they would waive based on circumstances. They declined and said I could appeal. In his appeal, Attorney Tavares states, “I’ll pay the fee if necessary. My appeal is based on the fact that the Department hasn’t produced anything. They requested 20 extra days and sent fee estimate. Accordingly I don’t have any clarity to what if anything the Department is going to produce.” Where the Department is assessing 3 minutes per page to segregate and redact all the potentially responsive records, I find it is not clear how the Department requires 3 minutes to segregate and redact each page of the responsive records. 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 Attorney Tavares 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

Allison Mondello SPR24/3110 Page 4 November 27, 2024 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 Attorney Tavares 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: Craig Tavares, Esq.