Shaffer, Maya v. Randolph, Town of - Police Department (SPR 20150443)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords July 27, 2015 SPRlS/443 Mr. Brian P. Howard Town Clerk and Registrar Town of Randolph 41 South Main Street Randolph, MA 02368 Dear Mr. Howard: I have received the petition of Maya Shaffer appealing the response of Town of Randolph (Town) to her requests for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, in request dated May 27,2015 Ms. Shaffer requested copies of"[a]ll records related to an incident where a man was detained and searched after filming a traffic stop on [M]emorial [D]ay 2015." Ms. Shaffer also requested copies of any relevant departmental policy, and photos and roster records of each officer involved in the incident. In her second request, dated June 2, Ms. Shaffer requested copies of any Department media policy, a copy of the schedule of the Chief of Police for the period May 27-June 3, and copies of emails associated with the Memorial Day incident, as well as identification card information for the officers involved in the incident. The Town provided certain records, withheld others, providing a fee estimate for the records provided. Ms. Shaffer appealed. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). Public records and any non-exempt, segregable portions thereof, are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are not blanket in nature). The Town's response The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Brian P. Howard SPR15/443 Page Two July 27, 2015 Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The response by the Town did not contain the specificity required in a denial of access to public records. Accordingly, the Town is advised that to comply with the Public Records Law and Regulations it must provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. The response from the date, provided in a letter by you dated June 5, 2015, is confusing. At first you cite several exemptions to the Public Records Law, indicating that such exemptions "may apply" to the request. Such prospective citing of exemptions is unnecessary and creates confusion in the eyes of a requester; particularly in this instance when it appears the Town claims virtually none of them with respect to responsive records. The Town is encouraged to cite exemptions with specificity, but only to the extent that such exemptions actually apply to responsive records. It is not necessary to prospectively claim an exemption, as failure to do so will not bar the application of a properly stated exemption with respect to a request for public records. With respect to the records that do exist responsive to this request you explained that the Town provided with its written response "a copy of all of the requested records in its possession, custody and control except for the following records; emails to and from any members of the Randolph Police Department concerning this matter that constitute attorney work product or that are attorney/client privileged. To support this withholding you cited the deliberative process exemption to the Public Records Law, as well as "any other applicable source of attorney/client and attorney work product protection." With respect to identification, you informed Ms. Shaffer that this information is available through the Massachusetts Chiefs of Police Association and the Massachusetts Major Chit Chiefs, providing a web address for the MA Police ID Program. The Town also provided Ms. Shaffer with a fee estimate for the provision of records responsive to her request. The Supreme Judicial Court has held that confidential communications between governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of the attorney-client privilege. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 449-50 (2007). It is unclear from the Town's response which records, if any, were withheld pursuant to any specific exemption to the Public Records Law. The Town's claim of attorney client privilege also lacked the specificity required for the denial of access to public records. Fees A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall

Brian P. Howard SPR15/443 Page Three July 27, 2015 provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee of twenty cents ($.20) per page for a photocopy of a public record and fifty cents ($.50) per page for a computer printout of a public record. See 950 C.M.R. 32.06(1)(a). In addition to the copying fee, the Regulations provide that in cases where search or segregation time is necessary a custodian of records may charge a pro-rated fee based on the hourly rate of the lowest paid employee who is capable of performing the task. 950 C.M.R. 32.06(l)(c). The Regulations define "search time" as the time needed to locate, pull from the file, copy and refile public records, and "segregation time" as the time used to redact data that is exempt from non-exempt material. 950 C.M.R. 32.03. The search and segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § 1O (a). The Towns fee estimate lacked the specificity required by the Public Records Law and its Regulations. The estimate included a fee of $32.10 "for searching and segregation of public records," however the estimate provided no detail to explain whether the employee is the lowest paid person capable of performing the tasks. Accordingly, whereas Town has failed to meet its burden of specificity, it is hereby ordered to provide a response to Ms. Shaffer's request within ten (1 0) days in a manner consistent with this order, the Public Records Law and its Access Regulations. If Town intends to withhold or redact any records pursuant to a specifically stated exemption or the attorney client privilege, Ms. Shaffer must be provided with a written explanation, with specificity, how a particular exemption applies to each record, along with a custodial index. 950 C. M. R. 32.08(7), and with a privilege index, see also Suffolk Constr. Co., Inc., v. Div. of Capital Asset Management, 449 Mass. 444, 460 (2008). In addition, if the Town intends to charge Ms. Shaffer for the provision ofrecords responsive to her request the Town must provide her with a revised, detailed good faith fee estimate in advance in accordance with the Regulations. 950 C.M.R. 32.00. Accordingly, whereas Town has not overcome the presumption that the withheld records are public, the Town is hereby ordered, within ten (10) days ofthis order, to provide Ms. Shaffer with the requested records. If the Town maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Ms. Shaffer a written explanation, with specificity, how a particular exemption applies to each record. 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 Town intends to withhold or redact any records pursuant to a specifically stated exemption or pursuant to the common law attorney client or attorney work product privileges, Ms. Shaffer must be provided with a custodial index and a privilege index. See 950 C. M. R.

Brian P. Howard SPR15/443 Page Four July 27, 2015 32.08(7); see also Suffolk Constr. Co., Inc., v. Div. of Capital Asset Management, 449 Mass. 444, 460 (2008). A copy of any response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § lO(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid, y u must provide the responsive records. Supervisor of Records cc: Ms. Maya Shaffer