Michael Dreslinski v. Oxford, Town of - Police Department (SPR 20160365)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords June 10, 2016 SPR16/365 Lieutenant Anthony P. Saad Town of Oxford-Police Department 503 Main Street Oxford, MA 01540-1262 Dear Lieutenant Saad: I have received the petition ofMichael P. Dreslinski appealing response of the Town of Oxford- Police Department (Department) to a March 18, 2016 request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Dreslinski requested records relating to a theft of state property, emergency warning lights, from the Massachusetts Highway Department facility/depot in the Town of Oxford. 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, § 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 District 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. 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 One Ashburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Lieutenant Anthony P. Saad SPR16/365 Page 2 June 10, 2016 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. Written, good faith estimate The Department provided Mr. Dreslinski with a written, good faith estimate which included fees for search and segregation time of one (1) hour at $23.92 per hour, and a copy of the four-page report at five cents ($.05) per page for a total cost of $24.12. Whereas, Mr. Dreslinski mailed the Department a check for four dollars ($4.00) for the cost of a copy of the records, the Department reduced the $24.12 estimate to $20.12. Mr. Dreslinski appealed this fee estimate, stating his belief that the fees for records provided by municipal police departments are determined by statute, rather than by the Public Records Access Regulations. See G. L. c. 66, § 10 (a); see also 950 C.M.R. 32.06; SPR165/224 Determination of the Supervisor of Records (April12, 2016). Fees for copies ofpublic records (municipal and state entities other than Police and Fire) A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 10(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 black and white single or double-sided photocopy 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 0( a). Fees for copies ofr ecords from state and municipal police and fire departments Municipal police departments may respond to requests for public records by providing fee estimates as indicated by statute: ... The following fees shall apply to any public record in the custody of the state police, the Massachusetts bay transportation authority police or any municipal

Lieutenant Anthony P. Saad SPR16/365 Page 3 June 10, 2016 police department or fire department: for preparing and mailing a motor vehicle accident report, five dollars for not more than six pages and fifty cents for each additional page; for preparing and mailing a fire insurance report, five dollars for not more than six pages plus fifty cents for each additional page; for preparing and mailing crime, incident or miscellaneous reports, one dollar per page; for furnishing any public record, in hand, to a person requesting such records, fifty cents per page. A page shall be defined as one side of an eight and one-half inch by eleven inch sheet of paper. G. L. c. 66, 10(a) The statute states that municipal police departments may charge a fee of $1.00 per page "for preparing and mailing" certain reports. Municipal police departments may charge $.50 for copies of records provided "in hand." Whereas the provisions of this section permit a $1.00 fee for preparation of records, a municipal police department is not permitted to assess an additional fee for search and segregation. Further, whereas the statute provides for "preparing and mailing," a municipal police department is not permitted to charge an additional fee for postage. Whereas, Mr. Dreslinski has already submitted the four dollar ($4.00) fee for receipt of the copies of these records, the Department may not assess any more charges for copies of the responsive records. Order I find the Department has failed to provide a fee estimate as indicated by statute. Accordingly, the Department is hereby ordered without delay to provide Mr. Dreslinski with the responsive records for which he has already paid the Department elative to his March 18, 2016 request for records. cc: Mr. Michael Dreslinski