Altin Berxhiku v. Department of State Police (SPR 20251493)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 3, 2025 SPR25/1493 Allison Mondello Public Records Manager Office of the Chief Legal Counsel Massachusetts Department of State Police 50 Maple Street Milford, MA 01757 Dear Ms. Mondello: I have received the petition of Altin Berxhiku appealing the response of the Massachusetts 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 April 23, 2025, Mr. Berxhiku requested: [1] All communications (emails, texts, internal memos, call logs, meeting notes) between [identified individuals][;] [2] Any records showing and why sealed case information was accessed, and under what legal authority you were granted access to said records. Please provide the justification or order permitting you to review a sealed, dismissed case[;] [3] All drafts, notes, or communications prepared in connection with the February 26, 2024 interview referenced in the report, including any recordings or transcripts[;] [4] All documents or metadata related to your analysis of the letters written by [two identified individuals] including any software or tools used to assess grammar, spelling, or authorship — and any qualifications you may hold in forensic linguistics[;] [5] All communications, email chains, memos, and transmission records showing how the February 28, 2024 interview report authored by [identified individuals] was sent, shared, or transmitted to [identified individuals][;] [6] All internal notes or justifications concerning the retention, filing, or public release of this sealed case material, and whether legal counsel reviewed or approved such dissemination[;] [7] The legal basis— if one exists— for reopening or investigating a sealed case, without a warrant, subpoena, or judicial order, and without notifying me of the right to counsel. 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 SPR25/1493 Page 2 June 3, 2025 Prior Appeal This request was the subject of a prior appeal. See SPR25/1286; SPR25/1288 Determination of the Supervisor of Records (May 16, 2025). In my May 16th determination, I found that the Department intended to provide Mr. Berxhiku with a response to his request. On May 21, 2025, Mr. Berxhiku amended his request to seek the same categories of records between the dates December 1, 2023 and April 30, 2025. The Department responded on May 27, 2025. Unsatisfied with the response, Mr. Berxhiku petitioned this office and this appeal, SPR25/1493, 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). 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Department’s May 27th Response In its May 27, 2025 response, the Department assessed a fee of $187.50 to provide Mr. Berxhiku with 232 email communications and related attachments. The Department detailed its fee estimate as follows: The Massachusetts State Police is a law enforcement agency with various missions ranging from public safety and criminal justice to homeland security and emergency preparedness, a large percentage of department and records may relate to highly sensitive matters. Further, given our office’s and our agencies’ collaboration with other state and federal agencies on criminal investigations and other matters regarding state and national security, the resulting records undoubtedly contain privileged and exempt information such as intelligence and investigative data, personnel, private, and security related information, as well as

Allison Mondello SPR25/1493 Page 3 June 3, 2025 information related solely to internal personnel rules and practices of government necessary to withhold to ensure the proper performance of the Massachusetts State Police. These categories of information are specifically exempt pursuant to G.L. c. 4, § 7, cl. 26 (a), (b), (c), (f), and/or (n) and are not subject to public disclosure. Accordingly, the information must be segregated and redacted from the records before the records are produced to a third party such as the requestor … The Department estimates that it would take approximately Three (3) minutes to review each email and attachment, and to segregate and make the redactions as described above. Accordingly, the Department estimates that it would take approximately (3 min. x 232 = 696 minutes; 696 minutes/60 minutes = approximately 11.5 hours-4 hours) = 7.5 hours at a rate of $25/hour (representing the hourly wage of the lowest paid employee who is capable of performing the task) resulting in a total cost of $187.50. Fee Waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). Reasonableness of the Fee Estimate Although the Department has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 11.5 total hours of employee time, the Department has not provided sufficient explanation of why this amount of employee time is necessary. Specifically, the Department must clarify how it requires 3 minutes to segregate and redact each potentially responsive email communication. Additionally, under the Public Records Law, a fee may not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or

Allison Mondello SPR25/1493 Page 4 June 3, 2025 approved by the Supervisor of Records pursuant to 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). Although the Department has indicated that it intends to redact certain information pursuant to Exemption (a) of the Public Records Law, the Department must clarify which statute requires it to do so. Further, where I am not aware that the Department has submitted a petition under G. L. c. 66, § 10(d)(iv), seeking permission to charge for redactions performed under Exemptions (b), (c), (f), and (n), the Department must clarify if the fee assessed includes time necessary to redact records under Exemptions (b), (c), (f), and (n) of the Public Records Law. For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). This office encourages Mr. Berxhiku and the Department to communicate further in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency 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 to produce the records sought more efficiently and affordably). Any revision to the request would result in the requirement to issue a revised fee estimate. Conclusion Accordingly, the Department is ordered to provide Mr. Berxhiku with a response to the 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. Mr. Berxhiku may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku