Caitlin Russell v. Worcester, City of - Police Department (SPR 20170164)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 16, 2016 SPR17/164 Sgt. Michael J. Hanlon Worcester Police Department 911 Lincoln Square Worcester, MA 01608 Dear Sgt. Hanlon: I have received the petition of Caitlin Russell appealing the response of Worcester Police Department (Department) to a request for public records. G. L. c. 66 § 1O (A); see also 950 C.M.R. 32.08(). Specifically, Ms. Russell requested: 1) Any email communications between the Worcester Police Department and Donald J. Trump for President Inc. between June 16, 2015 and November 20, 2016 2) Any memos, briefs or reports regarding the Nov. 18, 2015 rally at the DCU Center 3) Any memos, briefs, or reports regarding protests/potential protests of Donald J. Trump's Nov~ 18, 2015 rally at the DCU Center in Worcester In responses dated December 9, 2016 and January 10, 2017 you provided Ms. Russell with fee estimates for provision of the records. Ms. Russell appealed and this appeal (SPR 17 /164) was opened as ·a result. I note that the request for the responsive records was made prior to the new provisions of the Public Records Law (Law) that went into effect on January 1, 2017. Therefore, the prior Law's provisions and regulations with respect to fees apply to this request and appeal. Fees 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) (2016 ed.) (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 One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Sgt. Michael J. Hanlon SPRl 7/164 Page 2 February 16, 2017 the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (2016 ed.) (fees for public records). The Regulations provide that in cases where search and 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 perfomring the task. 950 C.M.R. 32.06(1)(c) (2016 ed.). The Regulations define "search time" as the time needed to locate, pull from the file, copy and re-file 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 (2016 ed.). The search and segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § lO(a) (2016 ed.). Municipal police departments may respond to certain 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 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, §lO(a) (2016 ed.) Fees for incident reports In your December 9th response you provided Ms. Russell with a written estimate for a total of $863.08. This fee estimate included the cost of providing police incident reports as well as emails. You state that "five pages of police incident reports" are responsive to her request, and that Technical Services had conducted a search of the City's email server and had found a total of 1,435 emails "city wide" that fit the specified search criteria. The fee estimate for just the police incident reports was $138.08, which included two (2) hours of search and segregation at $66.54 per hour, with approximately 20 minutes being spent in reviewing each incident report. This also includes a $5.00 charge for copies of the reports, at $1.00 per page. The statute cited above states that municipal police departments may charge a fee of $1.00 per page "for preparing and mailing" certain reports. 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. G. L. c. 66, §lO(a)

Sgt. Michael J. Hanlon SPRl 7/164 Page 3 February 16, 2017 (2016 ed.). Further, whereas the statute provides for "preparing and mailing," a municipal police department is not permitted to charge an additional fee for postage. Fees for emails In the initial December 9th fee estimate you indicate the estimated cost to review the 1,435 emails was $863.08, which was broken down as 29 hours of search time at $25.00 per hour. Subsequent to the provision of this response, I understand Ms. Russell amended this portion of her request and is now requesting all 1,435 emails. This request was addressed in a secondary response dated January 10, 201 7. In your January 1o th response you provided Ms. Russell with an updated fee estimate for provision of the 1,435 emails that are responsive to her request for "emails that include communications between City of Worcester employees and 'Donald Trump for President' between the dates of June 16, 2015 and November 20, 2016." This updated estimate assesses search and segregation time as well as copying fees. The estimate for search and segregation comes to $8,900, which includes 356 hours at $25.00 per hour, with approximately 15 minutes being spent reviewing each email. It is unclear how much of the 356 hours are allocated to "search time" and how many hours are allocated to "segregation time." The Department must clarify how much of the quoted time will be spent on each task. Further, it is unclear why the Department requires 356 hours to review the emails. The Department must provide further detail to justify the amount of time quoted in this estimate. I understand a member of my staff contacted you regarding these matters and you agreed to provide Ms. Russell with a supplemental response. Conclusion Accordingly, I will therefore consider this appeal closed with the proviso that the Department provides Ms. Russell a supplemental response provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. 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. ~ y , ~ Rebecca S. Murray Supervisor of Records cc: Caitlin Russell