Amanda Kaufman v. Arlington, Town of - Police Department (SPR 20170445)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 15, 2017 Jessica L. Walsh Arlington Police Department 112 Mystic Street Arlington, MA 02474 Dear Ms. Walsh: I have received your petition on behalf of the Arlington Police Department (Department) to charge for time spent segregating or redacting public records in responding to requests made by Amanda Kaufman for specific incident reports. G. L. c. 66, § lO(d)(iv). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv)(2). The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose; or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d )(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. Id. Analysis The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality's petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. Id. It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; 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

Jessica L. Walsh Page 2 March 15, 2017 and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Considerations The Supervisor is required to consider the public interest served by limiting the cost of public access to the records. While the public benefits by minimal fees, if any, for the provision of public records, the Public Records Law allows for municipalities to recoup certain costs associated with responding to public records requests. G. L. c. 66, § lO(d). Given the nature of this request, the public interest is not limited by the assessing of search and segregation fees. Additionally, the Supervisor must consider the financial ability of the requestor to pay the additional or increased fees and any other relevant extenuating circumstances. This office has not received any documentation relative to the financial inability of the requestor to pay. Request for incident reports at two addresses In the Department's petition dated March 8, 2017, you explain Ms. Kaufman requested I reports regarding twenty six incidents that took place from January 2011-December 2016 at two identified addresses. You further state that this request was made as a follow-up request in which the call logs were provided for those two locations between the specified dates. These were said to have been sent via email with no issues. You explain these two locations both serve as private facilities for adolescents that require closer supervision for a variety of reasons. The first location is a residential facility and the second a school facility. Fee estimate The Department is seeking to charge a total fee of $231. 00 for the production of records responsive to Ms. Kaufman's requests for twenty six incident reports from January 2011- December 2016. A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d )(i). Municipalities may not assess a fee for the first 2 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d )(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id.

Jessica L. Walsh Page 3 March 15, 2017 However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d )(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 CMR 32.06(4). The Department estimates it will take "one half hour" to search, review, and redact each report. You assert one half hour is required per report due to the amount of work needed to search, review, and redact exempt information. Therefore, the Department estimates a total of thirteen hours to produce these records. You are seeking to charge an hourly rate equal to the hourly rate of the lowest paid employee which is $21/hour. With respect to the assessing of fees for redaction or segregation, the Department explains " [d ]ue to the fact each of the twenty six (26) incidents requested involves a juvenile offender (under 18 years of age), portions of the report must be redacted under several exemptions." The Department describes the applicable statutes as relating to victim information and juvenile delinquency records as they operate through Exemption (a) of the Public Records Law. In particular the Department cites G.L. c. 119, § 60A and G.L. c. 66, § 10. The Department also cites Exemption ( c) as it relates to personal privacy and medical information. Given these records include information relating to juvenile offender information, the Department has met its burden to explain how the request could not prudently be completed without redaction or segregation under applicable statutes. See G. L. c. 66, § lO(d)(iv). Therefore, the Department may assess a fee for the time spent to segregate and redact these requested records at the hourly rate indicated. However, the Department has not met its burden in explaining why thirty minutes is necessary for searching, reviewing, and redacting each of the reports. The 55 total pages broken down by report equals approximately 2-3 pages per report to review. Since the Department did not indicate why the thirty minutes per report is necessary, I find the amount of time estimated by the Department to be umeasonable. Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its March gth fee petition, the Department is permitted to charge for time spent segregating and redacting the requested records. However, the Department has failed to demonstrate the need for thirty minutes to review each report. See G. L. c. 66, § lO(d)(iv) (requiring the amount of the fee must be reasonable). When preparing a fee estimate for the provision of the requested records, the Department must reduce the amount of time charged for reviewing each report, or provide more detail

Jessica L. Walsh Page4 March 15, 2017 explaining why this amount of time is necessary. Ms. Kaufman may appeal the Department's fee estimate within ninety (90) days. See 950 C.M.R. 32.08(1 ). Please note, the requester has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G.L. c. 66, § lOA. Sincerely, Rebecca S. Murray Supervisor of Records cc: Amanda Kaufman