John D. Rousseau v. Rutland, Town of - Police Department (SPR 20171036)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 9, 2017 SPR17/1036 Chief Donald Haapakoski Town of Rutland-Police Department PO Box 242 Rutland, MA 01543 Dear Chief Haapakoski: I have received the petition of John D. Rousseau appealing the nomesponse of the Town ofRutland Police Department (Department) to his request for public records. G. L. c. 66, §lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Rousseau requested records pertaining to an identified matter. Having received no response, Mr. Rousseau petitioned this office. Subsequent to the opening of this appeal, the Department provided a partial response dated July 28, 2017. Mr. Rousseau continues to object to the Department's nomesponse to his requests for public records. Prior Appeals The requested records were the subject of a prior appeal. See SPR17 /854 Supervisor of Records Determination (July 10, 2017). In regards to that appeal, Mr. Rousseau had petitioned this office objecting to the nomesponse of the Department to his request for public records. That administrative appeal was closed with the proviso that the Department provides a response within ten (10) business days. Current Appeal and the Public Records Law Mr. Rousseau originally made a public records request to you on May 24th for seven categories of records. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (1 0) business days of receipt of the request. G. L. c. 66, § 10(a), (b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § 1O (b ). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. 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

Chief Donald Haapakoski SPR17!1036 Page 2 August 9, 2017 On July 28,2017 you provided Mr. Rousseau with a written response stating that the Department is unable to process his request and needed an additional ten days to review the responsive records. The Public Records Law It is important to note that the Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 1O A( d); 950 C.M.R. 32.03(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 ofthe records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); 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). 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. Fee estimates 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 (two) 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. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor ofRecords under a petition under G. L. c. 66, § lO(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, § 10(d)(iii); 950 CMR 32.06(4). Please be advised, a municipal RAO shall not charge a fee for the provision of a public record unless the RAO responded to the requester within ten (1 0) business days under G. L. c. 66, § 1O (b ). See 950 C.M.R. 32.06(2)(c ).

Chief Donald Haapakoski SPR17/1036 Page 3 August 9, 2017 Petitions for an extension of time Under the updated Public Records Law and Regulations, Records Access Officers may petition the Supervisor of Records (Supervisor) with respect to assessing fees and extensions of time to provide public records. G.L. c. 66, §10(c), (d); 950 C.M.R. 32.06(4)(e); 950 C.M.R. 32.06(4). RAOsmay request an extension from the Supervisor if more time is needed to provide records. Such a request for extension must occur within 20 business days of receipt of request or within 10 business days after receipt of a determination by the Supervisor that the requested record constitutes a public record. The Supervisor may grant an extension of 20 business days to an agency and 30 business days to a municipality, or longer depending on the circumstances. 950 C.M.R. 32.06(4)(e). Filing a petition does not affect the requirement that an RAO shall provide an initial response to a requester within 10 business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(b). RAOs must also provide a copy ofthe petition to the requester. G.L. c. 66, § 10 ( c), (d). RAOs are encouraged to send these petitions via email to either RAO.Petitions@sec.state.ma.us or pre@sec.state.ma.us. Order This office has emailed you a copy of the file and also mailed you a letter acknowledging the opening of this appeal. Accordingly, the Department is hereby ordered to provide Mr. Rousseau with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations without delay. 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: John D. Rousseau