June 19, 2015 Andrew
Earlier this month, we made the news after the Massachusetts State Police won an award for government secrecy in part because of how they responded to one of our records requests, but people who saw that news didn't get the full story. On June 6, Investigators Reporters & Editors, Inc. (IRE) gave the State Police its third annual “Golden Padlock Award,” naming them the most secretive government agency in the United States.
According to IRE:
The Massachusetts State Police habitually go to extraordinary lengths to thwart public records requests, protect law enforcement officers and public officials who violate the law and block efforts to scrutinize how the department performs its duties. It normally takes months or longer to respond to news media FOI requests. Requests for basic documents routinely produce refusals, large portions of blacked out documents or demands for tens of thousands of dollars in unjustified fees.
IRE cited the State Police's absurd response to one of our records requests as one of the reasons for the award.
After we asked the State Police for the internal affairs records of 49 state troopers last year, State Police attorney Jaclyn Zawada told us that simply providing us with a fee estimate for the records was too burdensome. Zawada said that the State Police would not provide us with a fee estimate unless we first paid a $710.50 “non-refundable research fee” so they could research how much the fee would be.
The State Police's attempt at charging a “research fee” to produce a fee estimate was mentioned by IRE, but there's much more to the story.
We filed an administrative appeal with the Supervisor of Records, who later told the State Police they could not charge a “research fee” and ordered them to provide a fee estimate within 10 days.
Instead of complying with the order, Zawada waited 21 days before finally providing a fee estimate. She said the State Police would charge $9,236.50 for digital copies of the records or $15,876 for paper copies.
Zawada initially claimed that it would take 24 and a half hours to do the research necessary to provide a fee estimate, but the letter she sent indicated that she only spent a few seconds doing a simple multiplication problem to arrive at the estimated fee.
Instead of basing the estimate on the actual number of pages and the actual amount of time necessary to prepare the records, Zawada simply took a fee estimate for the internal affairs records for one of the state troopers and multiplied it by 49.
We have again made an appealed to the Supervisor of Records for a number of reasons.
First, we believe government agencies have an obligation to make fee estimates as accurate as possible and should not use shortcuts that may significantly inflate the estimate.
When Zawada initially demanded that we pay a “research fee,” she claimed that “[d]rafting a good faith estimate... would require first a considerable amount of coordination with the IA section and many hours of research,” however, she did not actually do any of this work to prepare the fee estimate. When she finally sent the fee estimate, she noted that the State Police have the ability to provide a more accurate estimate, but would not do so.
Zawada seemed to blame the State Police's own hard-to-use records keeping system for her refusal to provide a more accurate estimate. “To generate a more precise estimate, the Department would conduct a computer search of IA Pro [a piece of software used for tracking information about state troopers] for a member’s history, identify each responsive file number, locate each file, and pull each file from the file room in order to determine the actual number of responsive files and approximate number of responsive pages,” she explained.
The State Police do not appear to be acting in good faith. By first telling us they would need to do hours of work to generate a fee estimate, then telling us they didn't actually need to do the work after all, they simply seem to be trying to stonewall our records request for as long as possible.
In a follow-up, Zawada defended herself by saying she isn't obligated to provide accurate fee estimates. She also claimed that when she attempted to charge us a “research fee,” it was really just a “courtesy” to help us “generate a more precise estimate.”
Secondly, the state trooper whose file Zawada used to generate the fee estimate was Walter Baptiste. According to a document we obtained from the State Police, Baptiste received the most complaints of any state trooper during the four year period between October 2010 to September 2014.
In her follow-up, Zawada noted that complaints only make up part of a state trooper's internal affairs file, but it still seems likely that a state trooper with an above average number of complaints is likely to have a larger than average internal affairs file.
We identified several other issues with the fee estimate, all of which we have raised with the Supervisor of Records. We hope that when the matter is finally resolved, the supervisor will order the State Police to provide a lower fee estimate that more accurately represents the actual cost of providing the records.