Corri Hopkins v. Massachusetts Department of Transportation (SPR 20250947)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 10, 2025 SPR25/0947 William J. Doyle, Esq. Assistant General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3150 Boston, MA 02116 Dear Attorney Doyle: On April 7, 2025, this office received your petition on behalf of the Department of Transportation (Department) requesting permission to assess fees for time spent segregating and 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, Corri Hopkins. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On March 23, 2025, Corri Hopkins requested “[t]he below categories all relate to [an identified] MassDOT Crash Number…” [1] Any crash report, including but not limited to the Fatal Accident Notification Report[;] [2] All versions of the above report(s)[;] [3] All notes associated with the report(s), including but not limited to all related fax cover sheets[;] [4] All email communications between the RMV and the requesting agency regarding the report(s) or the Event[;] [5] Immediate Threat Report[;] [6] All versions of the above report[;] [7] All notes associated with this report, including but not limited to all related fax cover sheets[;] 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

William J. Doyle, Esq. SPR25/0947 Page 2 April 10, 2025 [8] All email communications between the RMV and the requesting agency regarding the report or the Event[;] [9] All citation data related to the Event, including the citation itself[;] [10] All notes associated with the citation, including but not limited to all related fax cover sheets[;] [11] All email communications between the RMV and the requesting agency regarding the citation[;] [12] All email communications between the RMV and the Merit Rating Board regarding the citation[;] [13] Any response to the foregoing requests should include (but not be limited to) all records available (1) in the RMV Crash Records reporting system and (2) in the “Atlas” reporting system, to the extent that any such records exist.” 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. 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

William J. Doyle, Esq. SPR25/0947 Page 3 April 10, 2025 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). Petition to Assess Fees In its petition, in addition to charging for segregation and redaction required by law pursuant to Exemption (a) of the Public Records Law and the attorney-client privilege, the Department argues the following in support of its request to charge for segregation and redaction under Exemptions (c), and (f): The Massachusetts Public Records Law allows redaction under Exemption (c) for records likely to contain “personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy. Redaction under Exemption (f) is also allowed for certain investigatory materials, and applies to materials necessarily compiled out of the public view by investigatory officials that, if disclosed, “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” This exemption allows records custodians to keep their investigative techniques confidential, encourages voluntary witnesses and informants to come forward without fear of exposure, and provides an incentive for investigators to be completely candid in recording their observations, hypotheses, and interim conclusions.

William J. Doyle, Esq. SPR25/0947 Page 4 April 10, 2025 Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: The Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: The public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. This office has reviewed the trial court’s docket and verified that the criminal litigation, relating to records at issue in Ms. Hopkins’ request, is active and ongoing in the Norfolk Superior Court. See Commonwealth v. Karen Read, (Norfolk Superior Court, Docket No. 2282- CR-00117). In light of the pending matter, I decline to opine on the Department’s petition at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Corri Hopkins