Karissa Flynn v. Department of State Police (SPR 20250875)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 11, 2025 SPR25/0875 Allison Mondello Public Records Manager Office of the Chief Legal Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Karissa C. Flynn, Esq., of the Committee for Public Counsel Services, 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 December 20, 2024, Attorney Flynn requested “[a]ny and all internal affairs records, including but not limited to civilian complaints, officers’ reports, and internal affairs reports, pertaining to [an identified] Trooper . . . .” The Department provided a response on January 7, 2025 and January 8, 2025. Unsatisfied with the Department’s responses, Attorney Flynn petitioned this office, and this appeal, SPR25/0875, 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 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. Attorney 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 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 SPR25/0875 Page 2 April 11, 2025 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 January 7th and January 8th Responses In its January 7, 2025 response, in correspondence sent through its online records portal, the Department stated, “[d]ue to the expansive scope of your request, and the time it would take to fulfill, the Department has assessed a fee in accordance with M.G.L. c. 66, §10. You can find the assessment letter in the attachments tab of your user dashboard.” On January 8, 2025, Attorney Flynn responded to the Department through its online records portal and contended that she “did not see any [‘]attachments tab[’] anywhere in the MSP records portal[.]” She further noted that there was “no fee assessment that is compliance with G.L. c. 66, sec. 10, anywhere on this request page.” Subsequent to Attorney Flynn’s correspondence, as described above, the Department provided an additional response through its portal on January 8, 2025. The Department explained, “[t]he fee assessment is showing that it is/was properly attached under the attachments tab in your records center. . . . As courtesy, I attached a copy of the document to this [message].”

Allison Mondello SPR25/0875 Page 3 April 11, 2025 Current appeal In her March 31, 2025 appeal petition, Attorney Flynn contends that she was “able to access a copy of the fee assessment letter once [the Department] attached the document to a message . . . on January 8, 2025.” She additionally provides the following: Upon review of the fee assessment letter, I noted several deficiencies in the estimate. . . . First, I noted that I was aware that MSP had already redacted at least some of the responsive records and, thus, production of those would not require additional time to review and redact. Second, I noted that the fee estimate did not confirm that the rate of $25 per hour is the rate of compensation of the lowest paid employee capable of performing the necessary tasks. Third, I sought confirmation that segregation or redaction of every piece of paper identified would be necessary, pursuant to G.L. c. 66, § 10(d)(ii) and 950 CMR 32.06(4). In petitioning this office, Attorney Flynn provided screenshots of her “user dashboard” as accessed through the Department’s online records portal. Upon review, the screenshots indicate that a file titled, “P014476-122024_Flynn_Notice_of_Fee_Assessment.pdf” was uploaded to Attorney Flynn’s user dashboard on January 8, 2025. It is my understanding that the uploaded file, a copy of which Attorney Flynn provided to this office, comprises a letter from the Department in which it assesses a fee estimate for the provision of records responsive to Attorney Flynn’s request. The letter is dated January 7, 2025. 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).” In this case, where Attorney Flynn submitted a public records request on December 20, 2024, and it appears the Department provided a fee estimate on January 8, 2025, I find it is unclear whether the Department complied with G. L. c. 66, § 10(e). Specifically, in order to assess fees, the Department must demonstrate whether it provided a response to Attorney Flynn’s request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request. The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Attorney Flynn 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. Attorney Flynn may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Allison Mondello SPR25/0875 Page 4 April 11, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Karissa C. Flynn, Esq.