Mike Beaudet v. Springfield, City of - Police Department (SPR 20181469)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 19, 2018 SPRlS/1469 John R. Barbieri City of Springfield Police Department 130 Pearl Street Springfield, MA 01105 Dear Mr. Barbieri: I have received the petition of Mike Beaudet of WC VB-TV appealing the response of the City of Springfield Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on October 3, 2018, Mr. Beaudet requested copies of identified police incident and arrest reports. The Department provided a response to Mr. Beaudet's request on October 4, 2018. 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, § IO(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. Compliance with the requirements ofp roviding a response Under the Public Records Law, the Department is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d ). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § IO(a)(ii) (written response must 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

John R. Barbieri SPR18/1469 Page2 October 19, 2018 "identify any public records or categories of public records sought that are within the possession, custody, or control of the agency"). Additionally, if the public record requested is available on a public website, the records access officer may comply with the request by providing reasonable assistance in locating the record on the public website. See G. L. c. 66, § 6A( d). In response to Mr. Beaudet' s request for police incident and arrest reports ending in "AR," the Department indicates that "[a]rrest logs are available on the City's website at: https://www.spingfield-ma.gov/police/index.php?id=arr_log." In Mr. Beaudet's petition for appeal, he indicates that "Springfield police referred us to arrest logs, which do not contain the material we are seeking." · Although, the Department indicates the records may be located on its website, based on its response, in conjunction with Mr. Beaudet's petition for appeal, it is unclear if those records are responsive to Mr. Beaudet's request. Additionally, it is unclear if the Department possesses additional records responsive to Mr. Beaudet's request. Accordingly, the Department must provide a response to Mr. Beaudet that provides additional information regarding whether the Department possesses responsive records. See G. L. c. 66, § lO(b)(iv) (a written response shall "identify any records, categories ofrecords 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 ... "); Flatley, 419 Mass. at 511 (custodian has the burden of establishing the applicability of an exemption). Fee estimate 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, § lO(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, § lO(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 of Records 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, § lO(d)(iii); 950 CMR 32.06(4).

John R. Barbieri SPRlS/1469 Page 3 October 19, 2018 In its response, the Department indicates that "Police Department Incident Reports [reports ending 'OF'] may be obtained in person at Springfield Headquarters, 130 Pearl Street Mon-Fri 8:30 a.m. -3:30 p.m. (except holidays) for $1.00, or via the USPS by sending a check or money order payable to the City of Springfield to: Springfield Police Department, Clerk's Office, 130 Pearl Street, Springfield, MA 01105." Based on the Department's response, it is unclear how the Department's fee complies with the requirements of the Public Records Law. For example, it is uncertain whether the Department is charging for employee time spent to search for, compile, segregate, redact or reproduce the record or provide copies of the records. See G. L. c. 66, § lO(d). Accordingly, I find the Department must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10( d). Order Accordingly, the Department is ordered to provide Mr. Beaudet with a response to the request, provided in a manner consistent with this 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Mike Beaudet Anthony I. Wilson, Esq.