Alanna Durkin Richer v. Worcester County Sheriff's Office (SPR 20180531)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 2, 2018 SPRlS/531 Andrew J. Abdella, Esq. General Counsel Worcester County Sheriffs Office 5 Paul X. Tivnan Drive West Boylston, MA O1 5 83 Dear Attorney Adbella: I have received the petition of Alanna Durkin Richer appealing the response of the Worcester county Sheriffs Office (Office) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, in an email dated March 16, 2018, Ms. Richer requested a copy of "[a]ll use of force packages, including incident reports and other relevant material, for when an FN 303 was discharged at the Worcester County House of Correction in 20!'6 and 2017." Previous appeal This request was the subJect of a previous appeal. See SPRT8745TDetermmat10n of the Supervisor of Records (April 10, 2018). I closed SPR18/451 upon learning the Office had provided a response to Ms. Richer on April 8, 2018, which included a fee estimate. Unsatisfied with the April 3th response, Ms. Richer petitioned this office and this appeal, SPRl 8/531, 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, § lOA(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 of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 1 O(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 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

Andrew J. Abdella, Esq. SPR18/531 Page 2 May 2, 2018 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Fee estimates An agency 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). Agencies may not assess a fee for the first four hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d )(ii). Where appropriate, agencies 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. 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)(ii); 950 C.M.R. 32.06(4). The Public Records Law provides that a records access officer (RAO) shall not charge a fee for a public record unless the RAO responded to the requestor w1thm 10 busmess days. G. r:::-.- ---- c. 66, § 10(e )(ix). The Office provided Ms. Richer with an initial response to her March 16, 2018 request on April 9, 2018. As such, it is unclear whether a response was provided within ten business days of receipt of the request. The Office is not permitted to charge a fee for production of responsive records unless it provided an initial response to Ms. Richer within ten business days. The Office must clarify this matter or provide responsive records. I understand a member of the Public Records Division staff contacted your office about this matter. Order Accordingly, the Office is hereby ordered to either clarify how its fee is provided for in the Public Records Law or in the alternative, provide Ms. Richer with responsive records, provided in a manner consistent with the order, the Public Records Law and its Regulations within ten 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.

Andrew J. Abdella, Esq. SPR18/531 Page 3 May 2, 2018 Sincerely, ~~ Supervisor of Records cc: Alanna Durkin Richer