Kevin Rothstein v. Hingham, Town of - Police Department (SPR 20171195)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 12, 2017 SPR17/1195 Chief Glenn A. Olsson Town of Hingham Police Department 212 Central Street Hingham, MA 02043 Dear Chief Olsson: I have received the petition of Kevin Rothstein of WCVB-TV 5 appealing the response of the Town of Hingham Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Rothstein requested a copy of records related to an identified incident which includes a surveillance video. Department's response The Department provided Mr. Rothstein with the incident report, but withheld the video surveillance. In an August 16th email, Records Clerk Ashley Thomas informed Mr. Rothstein that the Department does not have a redacted version of the surveillance video. In reply, Mr. Rothstein informed you and Ms. Thomas thatthe Department's response did not address his request. Mr. Rothstein states, "assuming there is un-redacted surveillance video, there is precedent for release of redacted surveillance. It's incumbent upon the record holder to provide the records with the lawful redactions, or in this case, blurs." In an August 16th letter, Deputy Chief David Jones informed Mr. Rothstein that the Department provided him with the incident report, but does not have any redacted surveillance. The Department indicated it is withholding the entire surveillance video pursuant to Exemption (a) as this information relates to the Criminal Record Information Act (CORI), as a pre-trial proceeding. Mr. Rothstein petitioned this office contending he is entitled to a copy of the video with the identities ofthe individuals redacted and this appeal was opened as a result. 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, § 10A(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical 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 Glenn A. Olsson SPR17/1195 Page 2 September 12, 2017 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(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). Exemption (a) In its August 16th response letter, the Department claimed that the video surveillance tape is evidence in a shoplifting case and is being withheld pursuant to the CORl Act as it operates through Exemption (a) of the Public Records Law. Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7 (26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision ofthe Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The statute that the Department cites to withhold the video surveillance is the CORl Act, G. L. c. 6, § 167. CORl is defined as: [A ]ny records and data in any communicable form compiled by a criminal justice agency which concern an identifiable individual and relate to the nature or

Chief Glenn A. Olsson SPR17/1195 Page 3 September 12, 2017 disposition of a criminal charge, an arrest, a pre-trial proceeding, or other judicial proceedings, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to that recorded as the result of the initiation of criminal proceedings or any consequent proceedings related thereto. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. G. L. c. 6, § 167 (emphasis added). Deputy Chief Jones' response states that the Department is denying Mr. Rothstein's request of the video surveillance under the CORI Act in its entirety because it is evidence in a pre-trial proceeding. In your August 31st letter to this office, and Deputy Chief Jones' August 16th letter to Mr. Rothstein, it was explained that the Department does not have a redacted version it can provide Mr. Rothstein, nor does it have the means or technical equipment to redact or blur the images on the video. The Department has not met its burden under the Public Records Law to withhold the record in its entirety because it has not demonstrated that the CORI Act allows for the withholding of this record. Segregable portion If an exemption applies to allow the withholding of the record, the Department has a duty to redact the exempt portion of a record and provide the balance of the record. The statutory exemptions are narrowly construed and are not blanket in nature. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-90 (1979); see also G. L. c. 66, § lO(a). Please be advised that the Departmenthas a duty to disclose any non-exempt, segregable portion of the requested video. Municipality- Fees The Department would be allowed to assess a fee for providing a properly redacted copy of the video recording, however, the fees must be reasonable and in compliance with the Public Records Law. 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. I d. 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, § 1 0(d )( iii). Please note, "employee time" means time required by employees or necessary vendors, including outside legal counsel,

Chief Glenn A. Olsson SPR17/1195 Page4 September 12, 2017 technology and payroll consultants or others as needed by the municipality. G. L. c. 66, § 10(f). 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. G. L. c. 66, § 10(d)(iii). (emphasis added). 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, § 1 0(d )(iv). See G. L. c. 66, § 10 (d )(i ii); 950 CMR 32.06(4 ). A Records Access Officer (RAO) may not charge a fee unless the RAO provides a written response in compliance with G. L. c. 66, § 1O (b) within ten business days following receipt of the request. G. L. c. 66, § 10(e). The Department may not be permitted to charge fees associated with the request if the Department did not provide a response to this request in compliance with this provision ofthe law. See G. L. c. 66, § 10(e); see also 950 C.M.R. 32.06(2)(c ). The written response shall be made via first class or electronic mail and shall: (i) confirm receipt of the request; (ii) identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the records access officer serves; (iii) identify the agency or municipality that may be in possession, custody or control of the public record sought, if known; (iv) identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based, provided that nothing in the written response shall limit an agency's or municipality's ability to redact or withhold information in accordance with state or federal law; (v) identify any public records, categories of records, or portions of records that the agency or municipality intends to produce, and provide a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time to produce the public records sought; (vi) identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein; (vii) suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably;

Chief Glenn A. Olsson SPR17/1195 Page 5 September 12, 2017 (viii) include an itemized, good faith estimate of any fees that may be charged to produce the records; and (ix) include a statement informing the requestor of the right of appeal to the supervisor of records under subsection (a) of section 1O A and the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court under subsection (c) of section 1O A. G. L. c. 66, § lO(b). It is unclear whether the Department complied with G. L. c. 66, § 10 (e ) and 950 C.M.R 32.06(2)(c). Therefore, I find the Department must demonstrate whether it responded to the July 18th request within ten business days following receipt of the request in compliance with G. L. c. 66, § lO(e) and 950 C.M.R 32.06(2)(c). Order Accordingly, the Department is hereby ordered to provide Mr. Rothstein with a response to his request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) 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. Mr. Rothstein may appeal the substantive nature of the response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Kevin Rothstein