Renner, James v. Amherst, Town of - Police Department (SPR 20150933)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords January 22, 2016 SPRlS/933 Captain Jennifer A. Gundersen Amherst Police Department Ill Main Street Amherst, MA 01002 Dear Captain Gundersen: I have received the petition of James Renner appealing the response of the Amherst Police Department (Department) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Renner requested all records pertaining to a specifically identified hit and run in Amherst, including all incident reports and investigatory notes. Previous appeal This request was the subject of a previous appeal. See SPR15/786 Determination of the Supervisor of Records (December 11, 20 15). In a response dated September 29, 2015 the Department indicated it would provide records responsive to the request with certain portions redacted upon payment of a fee of $29.00. It should be noted the Department amended its fee estimate to $28.00 in an email to Mr. Renner dated September 30, 2015. I found the Department's response did not contain the specificity required in a denial of access to public records. I ordered the Department to provide Mr. Renner a revised response, prepared in compliance with the Public Records Law and its Access Regulations (Regulations). See SPR15/786 Determination ofthe Supervisor of Records (December 11, 2015). Current appeal The Department provided a response to this order in a letter dated December 21, 2015. The Department explained it redacted certain information under Exemptions (a), (c), and (f) of the Public Records Law. G. L. c. 4, § 7 (26) (a), (c), and (f). In an email dated December 22, 2015, Mr. Renner objected to this December 21 response. This appeal (SPR15/933) was opened as a result. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Captain Jennifer A. Gundersen SPR15/933 Page 2 January 22, 2016 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). 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 ( c); 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). Exemption (c) In your December 21letter, you indicate the Department redacted portions of the responsive record under Exemption (c). Exemption (c) applies to: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, §7 (26)(c) Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." Id. at 434. To facilitate my review, I reviewed an unredacted copy of the record for an in camera review. See 950 C.M.R. 32.03. I would like to thank the Department for its cooperation. You explain that the Department "has only redacted the names and identifying details of the individual who were struck and injured at the scene following the accident, and subsequently, transported for medical treatment." Based on my in camera inspection and the Department's December 21letter, I find the Department acted within its discretion in redacting medical information from the responsive records pursuant to the first clause of Exemption (c). Exemption (f) The Department explains that it redacted other portions of the record pursuant to Exemption (f) of the Public Records Law. Exemption (f), the "investigatory" exemption, permits the withholding of: investigatory materials necessarily compiled out of the public view by law

Captain Jennifer A. Gundersen SPR15/933 Page 3 January 22,2016 enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, §7 (26)(±) A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters they have witnessed. Bougas, 371 Mass. at 62. In the December 21 letter, you explain that the Department only redacted "identifying investigative details from the report, the disclosure of which would unduly prejudice the [Department's] ability to further investigate the case." Based on my in camera inspection and the Department's December 21 letter, I find the Department acted within its discretion to redact information that would identify witnesses or complainants. The Department also redacted information pertaining to the collection of evidence. In a January 8 email to Mr. Renner, you state "this matter remains subject to additional criminal investigation by law enforcement, including the [Department], and potential criminal prosecution." In a January 2016 telephone conversation you confirmed that no deaths occurred as a result of this incident. I find the Department has yet to justify, with specificity, withholding non-witness identifying information pursuant to Exemption (f) of the Public Records Law. Fees In your September 30 email to Mr. Renner, you indicate there is a $28.00 fee for the provision of this record. 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 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 oftwenty

Captain Jennifer A. Gundersen SPR15/933 Page 4 January 22, 2016 cents ($.20) per page for a photocopy of a public record and fifty cents ($.50) per page for a computer print out 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(1)(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, § 10(a). You explained that the $28.00 fee is based on the following: $10.00 (consisting oftwenty (20) pages multiplied by $.50 per page); and $18.00 associated with segregation time (one (1) hour of segregation time at $18.00 per hour). You informed Mr. Renner that the Department will either mail or email these records to him upon receipt of payment. I find this fee estimate fails to establish whether it uses the hourly rate of the lowest paid person capable of performing the task to redact. See 950 C.M.R. 32.06(1)(a). In addition, it does not specify if the $0.50 fee is based on G. L. c. 66, § lO(a) or the Regulations. See 950 C.M.R. 32.06(1)(c). No other responsive records It should be noted that in a January 8, 2016 email to Mr. Renner, you stated "[t]here are no additional responsive records, beyond which is listed below and available to you .... " Under the Public Records Law, the Department is not required to create a list of records or any record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). Conclusion For the reasons discussed above, I find the Department permissibly redacted medical or other information that would identify the victim under Exemption (c) as well as information that would identify witnesses or complainants under Exemption (f). I further find, however, that the Department has not met its burden with respect to other information redacted pursuant to Exemption (f), nor has the Department sufficiently explained its fee estimate for the provision of responsive records.

Captain Jennifer A. Gundersen SPR15/933 Page 5 January 22, 2016 Accordingly, the Department is hereby ordered, within ten (10) days, to provide Mr. Renner with a revised response that explains, with specificity, how information, other than information that would identify witnesses or complainants, may be withheld under Exemption (f) due to an ongoing investigation. This response must include a revised fee estimate. This response must be prepared in a manner consistent with the Public Records Law and its Regulations. A copy of any such 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. To assist the Department in responding to requests for public records I have enclosed a copy of our publication, A Guide to the Massachusetts Public Records Law. This document is also available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. Enclosure cc: Mr. James Renner