Patrick Higgins v. Swansea, Town of - Police Department (SPR 20160265)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 3, 2016 SPR16/265 Mr. Arthur D. Frank Jr., Esq. 209 Bedford Street, Suite 402 Fall River, MA 02720 Dear Attorney Frank: I have received the petition of Patrick Higgins appealing the response of the Town of Swansea-Police Department (Department) to a request for public records. G. L. c. 66 § 1 O(b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Higgins requested copies of"any reports or other documents in the possession ... of the Department" relating to himself. In his request Mr. Higgins noted his wish to view and inspect records rather than purchase copies. In response the Department found 30 pages of responsive records. Two records were withheld pursuant to the investigatory exemption to the Public Records Law. G. L. c. 4, § 7 (26) (f). The Department noted it was unable to accommodate the request to view and inspect, but would provide copies of records in paper or electronic form at no charge. A fee estimate was provided for the Chiefs review of responsive email records. See 950 C.M.R. 32.06 (fees for public records). Mr. Higgins appealed both the withheld records and fee estimate. 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, § lO(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). The Department failed to state with specificity the application of the claimed exemption In your March 15 response you cited Exemption (f), the investigatory exemption, for the withholding of two incident reports from June 25, 2015 and March 9, 2016. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Arthur D. Frank, Esq. SPR16/265 Page 2 May 3, 2016 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, § lO(c) (emphasis added); see also Globe Newspaper Co. v. Police Comm'r; 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department is withholding two (2) responsive incident reports claiming "that are privileged pursuant to" Exemption (f), the investigatory exemption to the Public Records Law. This response, however, fails to state with specificity the application of the exemption to the records to permit nondisclosure. The Department failed to provide a fee estimate that is in compliance with the Regulations A custodian of records may assess a reasonable fee for complying with a request for public records. 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 ($1 0.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee of five cents ($.05) per page for a single or double-sided photocopy or 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(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, § 1 O(a). The Department's fee estimate fails to state that, in preparing the estimate, the Department assessed the hourly rate of the lowest paid person capable of performing the task of search and segregation of responsive records. Further, the Department failed to provide an explanation justifying the time needed for review of the responsive records. The Department to provide revised response; waive fees Subsequent to the intervention by a member of my staff, you notified this office on April 27, 2016 that you will provide Mr. Higgins with a revised response; in this response you intend to waive the fees associated with search and segregation of the responsive records. Accordingly, I will now consider this appeal closed with the proviso that the Department provide Mr. Higgins with a revised response to his request within ten ( 10 ) days prepared in a manner consistent with this order, the Public Records Law and its Regulations. If the Department maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days

Mr. Arthur D. Frank, Esq. SPR16/265 Page 3 May 3, 2016 provide to Mr. Higgins 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. 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. Mr. Higgins may appeal the substantive nature of the Department's response within ninety (90) days. See 950 C.M.R. 32.08(2). To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is 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 deter ·na: ion fo further information. cc: Mr. Patrick Higgins