Mitchell Kosht v. Department of State Police (SPR 20252205)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 11, 2025 SPR25/2205 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 Mitchell Kosht, Esq., of Thomas Oakley PLLC, 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, Karissa C. Flynn, Esq., of the Committee for Public Counsel Services, 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.” Previous Appeal This request was the subject of a previous appeal. See SPR25/0875 Determination of the Supervisor of Records (April 11, 2025). In my April 11th determination, I found that 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. Subsequently, the Department responded on July 24, 2025. Unsatisfied with the Department’s response, Attorney Kosht petitioned this office, and this appeal, SPR25/2205, 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). 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 SPR25/2205 Page 2 August 11, 2025 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 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). Current Appeal In the appeal petition, Attorney Kosht argues the following: [T]he key question -- under the statute and [the Supervisor’s] determination -- is whether Ms. Flynn was “provided” a response within 10 days. See also G.L. c. 66 Sec. 10(b) (requiring that a requester be “informed within 10 days”). The date on which the State Police uploaded the document into a system that they have full control over is therefore irrelevant. What matters is when Attorney Flynn received the document and was able to read its contents. Only then was she informed and the document provided. MSP admits this did not happen until January 8, 2025, which is outside the 10 day window. (“As was indicated in Attorney Flynn’s appeal, Public Records Analyst Conor Phillips uploaded the fee estimate on January 7, 2025, but Attorney Flynn was unable to access the file until the following day, January 8, 2025”). This admission is dispositive.

Allison Mondello SPR25/2205 Page 3 August 11, 2025 Nor is the evidence provided to the contrary. The video provided by the State Police does appear to show that the document was initially uploaded on the 7th. But it also shows that it was modified on the 8th. Whatever this modification may have been (publishing? a change in the permissions?) Attorney Flynn could only access the document after it occurred. Please see the attached screenshot from Attorney Flynn’s side of the portal, which clearly shows the document has an upload date of January 8, 2025. For these reasons we ask that you determine that MSP’s fee petition was not timely provided to Attorney Flynn and that the State Police are therefore barred from imposing fees in this instance. The Department’s July 24th Response In its July 24, 2025 response, the Department provides a video screen recording of its portal showing that the letter including the fee estimate was uploaded to the Department’s portal on January 7, 2025. The Department further explains the following: In this case, the original public records request was submitted by Attorney Flynn on Friday December 20, 2024. In calculating the ten day period, day one would be the December 23, 2024 (the following Monday). December 25 and January 1 are holidays and not included in the calculation. As a result, day ten would be January 7, 2025. As was indicated in Attorney Flynn’s appeal, Public Records Analyst Conor Phillips uploaded the fee estimate on January 7, 2025, but Attorney Flynn was unable to access the file until the following day, January 8, 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).” Where Attorney Flynn submitted her request on December 20, 2024, and the Department has demonstrated that it provided a fee estimate under G. L. c. 66, § 10(b) on January 7, 2025, within 10 business days of receipt of the request, I find the Department may assess a fee to produce responsive records. Accordingly, I will address the Department’s January 7th fee estimate. The Department’s January 7th Fee Estimate In its January 7, 2025 response, the Department gives a total fee estimate of $165 and provides the following information in support of its fee estimate: 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

Allison Mondello SPR25/2205 Page 4 August 11, 2025 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 records are reasonably likely to contain information that is protected from public disclosure as required by law, including: • Home Addresses and Telephone Numbers of Public Safety Personnel G. L. c. 66, § 10B. The Department and other law enforcement agencies are involved in motor vehicle crashes throughout the Commonwealth. As such, their home addresses and telephone numbers could be contained in the crash reports. • Reports of Domestic Violence G. L. c. 41, § 97D. There are occasions, where the Department responds to motor vehicle accidents where domestic violence allegations are involved. Such information could be contained in the crash reports. • M.G.L. c. 6, § 172, the Criminal Offender Record Information (“CORI”) statute. The Department has reviewed crash reports that involve criminal charges and warrant arrests. Such reports may be used to charge an individually criminally, who may be the subject of pending criminal charges. • 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, §10B (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). The Department has reviewed crash reports that involve juveniles’ names and identifying information or misconduct. • 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). The Department has reviewed crash reports that involve an investigation into a party suffering from a mental health or substance abuse episode. • M.G.L. c. 214, § 1B, Right of Privacy. Crash reports 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.

Allison Mondello SPR25/2205 Page 5 August 11, 2025 The Department has located 212 pages of potentially responsive records. The Department estimates that it would take approximately three (3) minutes to review each page, and to segregate and make the redactions as described above. Accordingly, the Department estimates that it would take approximately 10.6 hours [212 records x 3(x) minutes= 636 minutes/ 60 = 10.6] to segregate and redact all the potentially responsive records, resulting in a cost of $165.00 [10.6 hours-4 hours x $25 per hour= $165.00]. Total cost for segregating and/or redacting the records= $165.00 In this case, based on the Department’s response, it is unclear why the Department requires 3 minutes per page to review, segregate, and redact the records. The Department must provide further details regarding the contents of the records and why it would take this amount of time to review them. Additionally, in its response, the Department has not stated whether the hourly rate being used is equal to or less than that of the lowest paid employee with the necessary skills to perform the tasks. The Department must clarify this. Further, in his appeal petition, Attorney Kosht contends the following: After filing her request, Attorney Flynn happened to learn that a different attorney had recently paid MSP to redact and produce some of the same records at issue in her request. It is unreasonable for MSP to impose a fee to redact records that it has already (in fact, very recently) been paid to redact. A fee for those records exceeds the actual cost of reproducing them, because reproducing the records should involve nothing more than attaching the previously redacted PDF. In light of the information provided in Attorney Kosht’s appeal petition, where it appears the Department has previously provided some of the records in its possession, it is unclear how the Department may charge for segregation or redaction time for those records. This office encourages Attorney Kosht and the Department to communicate directly 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). For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Department is ordered to provide Attorney Kosht 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 Kosht may further appeal the substantive nature of the

Allison Mondello SPR25/2205 Page 6 August 11, 2025 Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Mitchell Kosht, Esq.