Caitlin Russell v. Wareham, Town of - Police Department (SPR 20171457)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 23, 2017 SPR17/1457 Jenna L. Correia Town of Wareham Memorial Town Hall Office of the Town Clerk 54 Marion Road Wareham, MA 02571 Dear Ms. Correia: I have received the petition of Caitlin Russell appealing the response of the Town of Wareham (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Russell requested a copy of all civilian complaints against the Town's Police Department from 2010 to the date of the request. The Town provided Ms. Russell with redacted copies of the complaints without providing her without a detailed explanation of the exemptions claimed. It is my understanding the Town provided Ms. Russell with a fee of $525.00 to provide her with a specific response regarding the redactions. Ms. Russell petitioned this office, and an appeal was opened. Petitions to the Supervisor of Records Ms. Russell is reminded that under the new requirements in the Public Records Law, when petitioning the Supervisor of Records (Supervisor) for an appeal, the requester shall provide to the Supervisor complete copies of all correspondence associated with the petition, including all written responses associated with requests subject to the petition for appeal. 950 C.M.R. 32.08(1)(g). Additionally, in petitioning the Supervisor, the requester shall provide a copy of such petition to the Records Access Officer (RAO). 950 C.M.R. 32.08(1)(h). A staff member of the Public Records Division provided the Town with a copy of the appeal file, including Ms. Russell's petition to the Supervisor. 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, § lOA( d); 950 C.M.R. 32.03(4). "Public 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

J enna L. Correia SPR17/1457 Page 2 October 23, 2017 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(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. Fees for public records The basis for Ms. Russell's appeal is the Town's $525 fee to provide her with an explanation for the redactions in the records she received. She states, "[t]here was no indication of which exemptions applied to which redactions -there was just a list of definitions." In a July 20th email, you explained to Ms. Russell that the Town has spent hours on her request and has not charged any fees for compiling, segregating and redacting. You further explained that the redactions were based on Exemptions (a), (c) and (f), and attached a copy of pages from the Guide to the Massachusetts Public Records Law which defines those particular exemptions. Ms. Russell questioned why the Town did not properly cite the exemptions made to each of the complaints. She asked the Town to provide her with the documents in a form that would tell her which exemptions were applied to each redaction. The Town informed her that she would be charged $525.00. The fee includes: • 3 hours at $175 per hour (hourly rate of the Town's Legal Counsel)= $525 It is unclear why the Town believes it may assess a fee to provide Ms. Russell with a detailed response or index to explain what exemptions were claimed and how those exemptions apply to withhold content redacted from each of the complaints. The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(b)(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Town's response that accompanied the redacted complaints did not contain the specificity required in withholding content from a public record. Instead, the Town cited exemptions without any further explanation as to the applicability to the redacted complaints. I find that the Town did not satisfy its burden in responding to Ms. Russell's request under the Public Records Law. See G. L. c. 66, § 10(b)(iv); see also 950 C.M.R. 32.06(3)(c).

J enna L. Correia SPR17/1457 Page 3 October 23, 2017 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, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 CMR 32.06(4). Further, the Town may not charge Ms. Russell a fee for providing her with a proper response to her request. 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 of Records under a petition under G. L. c. 66, § 10(d)(iv). Order Accordingly, whereas I find that the Town may not assess a fee for providing a substantive response regarding its exemption claims and how those exemptions specifically apply to the redacted complaints, I will consider this appeal closed with the proviso that the Town provides Ms. Russell with the response within ten business days, 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Caitlin Russell