John v. Massachusetts Parole Board (SPR 20252805)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 7, 2025 SPR25/2805 Andrew S. Doherty, Esq. Deputy General Counsel Massachusetts Parole Board 12 Mercer Road Natick, MA 01760 Dear Attorney Doherty: I have received the petition of John (requestor) appealing the response of the Massachusetts Parole Board (Board) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 15, 2025, the requestor sought: [1] Email Records[:] Direct email addresses of all personnel in Region Four. Archived or stored email communications, including sent and received messages, involving official duties. [2] Fax Communications[:] Official fax numbers used by Region Four. [3] Payroll Records (2025)[:] Payroll data for all Region Four employees for the year 2025, including names, titles, base salaries, overtime, bonuses, and other compensation or stipends. [4] Surety Bonds / Insurance Coverage[:] Records identifying any surety bonds or insurance carriers covering Region Four officers, agents, or contractors for liability or performance. [5] Disciplinary Records[:] All records of disciplinary actions, complaints, investigations, findings, or sanctions involving Region Four personnel, including both sustained and unsustained complaints. [6] Peace Officer Certification[:] Any POST or other peace officer certification held by any Region Four personnel. [7] Code of Conduct / Policy Manual[:] Any applicable codes of conduct, policies, or ethical guidelines governing the behavior and responsibilities of Region Four personnel. [8] Complaint Logs / Internal Investigations[:] Records of formal or informal complaints, including logs, investigative files, outcomes, and summaries. [9] Personnel Records (Limited)[:] Names, titles, dates of hire, termination (if applicable), and current employment status of all Region Four personnel. 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

Andrew S. Doherty, Esq. SPR25/2805 Page 2 October 7, 2025 [10] Training Certifications[:] Documentation of completed training, including (but not limited to): use of force, ethics, implicit bias, and professional development. [11] Financial Disclosures / Conflicts of Interest[:] Any Statement of Financial Interests or other required disclosures by Region Four personnel, if applicable under Massachusetts law. Prior Appeal A similar request was the subject of a prior appeal. See SPR25/2473 Determination of the Supervisor of Records (September 3, 2025). In my September 3rd determination, I found that the Board had met its burden in responding to several items of the request, and ordered that the Board clarify its assessed fee or provide further explanation of how the fee was consistent with the Public Records Law. Subsequently, the requestor placed his September 15, 2025 request. The Board responded on September 24, 2025. Unsatisfied with the response, the requestor petitioned this office and this appeal, SPR25/2805, 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 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

Andrew S. Doherty, Esq. SPR25/2805 Page 3 October 7, 2025 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 Board’s September 24th Response In its September 24, 2025 response, the Board assessed a fee of $400.00 to produce records responsive to Items 5, 6, 8, 9, and 10. The Board further stated: With respect to your category No. 1, a directory of Parole Board Employees, which includes the direct email addresses of Parole Board Employees assigned to Region Four, is available on our website here: https://www.mass.gov/orgs/massachusetts-parole-board … With respect to your category No. 2, seeking the Region Four fax number, the fax number is available on our website here: https://www.mass.gov/orgs/massachusetts-parole-board With respect to your category No. 3, payroll information related to state employees, including Parole Board staff, is available here: https://cthrupayroll.mass.gov/#!/year/2025/ With respect to your category No. 4, seeking records identifying surety bonds or insurance carriers covering Region Four officers, agents, or contractors for liability or performance, after a reasonable search for these records, I have no records responsive to this request … With respect to your category 7, I will work to produce the Parole Board policies related to field officer conduct. I request a two week extension in order to produce these materials to you. Please advise if this is acceptable. Finally, with respect to your category 11, seeking financial disclosure statements and conflict of interest statements, such records, if they exist, may be available here: https://www.mass.gov/orgs/state-ethics-commission

Andrew S. Doherty, Esq. SPR25/2805 Page 4 October 7, 2025 Current Appeal In his September 24, 2025 petition to this office, the requestor objected to and sought a waiver of the Board’s assessed fee. The requestor further sought the following relief related to Items 1, 2, 3, 4, and 11: [1] Only publicly available directory referenced; direct emails not provided … Produce a complete directory including direct email addresses for all Region Four personnel within 14 calendar days … [2] Only website reference provided … Confirm the official fax number in writing within 7 calendar days, including the responsible office contact … [3] Partial reference to publicly available payroll; confirmation for Region Four personnel lacking … Provide a verified list or method of access within 7 calendar days … [4] Board claims no records exist … Provide sworn confirmation regarding the existence or non-existence of surety bonds or insurance covering Region Four personnel within 7 calendar days … [11] No confirmation provided regarding existence of statements for Region Four personnel … Confirm existence or non-existence and, if available, provide copies within 14 calendar days, or provide a written explanation citing statutory exemption. The requestor further inquired whether the Board had an estimated date of delivery for records responsive to Item 7 of the request. No Duty to Create Records; Records Available on a Public Website Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). It is also permissible for the custodian of records to provide access to records by directing a requestor to a public website. See G. L. c. 66, § 6A(d) (“If the public record requested is available on a public website ... the records access officer may furnish the public record by providing reasonable assistance in locating the requested record on the public website.”); see also 950 C.M.R. 32.04 (5)(e) (“A records access officer shall ... to the extent feasible, furnish the public records by providing reasonable assistance in locating the records on an appropriately indexed and searchable public website”); 950 C.M.R. 32.07 (2)(a) (“A records access officer shall inform a requester of the availability of records online to avoid delays and fees associated with the provision of public records”).

Andrew S. Doherty, Esq. SPR25/2805 Page 5 October 7, 2025 Consequently, given that the Board has provided access to records responsive to Item 1 and 2 by directing the requestor to a public website, and where this office has no authority to compel the Board to create records, I find that the Board has met its burden in responding to these portions of the request. Issues Previously Addressed The requestor is advised that to the extent he is seeking assistance related to Items 3, 4, and 11 of the request, such issues were previously addressed in my September 3rd determination. See SPR25/2473 Determination of the Supervisor of Records (September 3, 2025) (finding that the Board had met its burden to respond to requests regarding payroll, surety bonds, and conflict of interest statements). Consequently, I am unable to issue a second determination on those matters at this time. The Board’s Fee Estimate In its September 24th response, the Board provided the following breakdown of its assessed fee: With respect to your categories 5, 6, 8, 9, and 10, seeking various personnel, training, and certification records related to the 10 employees currently assigned to Region Four, I estimate that the collection, review, segregation, and possible redaction of this material would take no less than 2 hours per employee. Given this, I am assessing a fee of $400.00 (20 hours, less 4 hours, at a rate of $25.00 per hour) which much be paid prior to this work being performed. Should you wish the Board to proceed with this, please forward a bank check in the amount of $400.00, payable to the Massachusetts Parole Board, to my attention at the above address. 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

Andrew S. Doherty, Esq. SPR25/2805 Page 6 October 7, 2025 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 Board has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 20 total hours of employee time, the Board has not provided sufficient explanation of why this amount of employee time is necessary. The Board must clarify how many hours of search time and how many hours of segregation and redaction time it requires to produce the responsive records. The Board must also provide additional information regarding the number of pages the Board possesses which are responsive to the request. Additionally, it appears from the Board’s response that it plans to segregate and redact the responsive records. 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 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). Consequently, the Board must clarify under which statute it expects to redact the responsive records. Further, the Board must clarify whether $25.00 per hour is the hourly rate of the lowest paid employee who has the skill required to search for, compile, segregate, redact, or reproduce the requested records. For the reasons discussed above, I find the Board must revise its fee estimate or provide further explanation of how the fee of $400.00 assessed in its September 24, 2025 estimate is consistent with G. L. c. 66, § 10(d). This office encourages the requestor and the Board 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 Board is ordered to provide the requestor 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. The requestor may appeal the substantive nature of the Board’s response within ninety days. See 950 C.M.R. 32.08(1).

Andrew S. Doherty, Esq. SPR25/2805 Page 7 October 7, 2025 Sincerely, Manza Arthur Supervisor of Records cc: John