Tommy Birks v. Holyoke, City of - Police Department (SPR 20190100)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 31, 2019 SPR19/100 Officer Caron L. Porter Records Access Officer Town of Holyoke Police Department 13 8 Appleton Street Holyoke, MA 01040 Dear Officer Porter: I have received the petition of Tommy Birks appealing the response of the Town of Holyoke Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Birks requested a copy of: incident reports, supplemental reports, written statements, evidence reports, recorded statements and booking sheet pertaining to an identified individual. On October 16, 2018, the Department provided Mr. Birks with a fee estimate for $90.14 to provide him with records responsive to his request. The Department assessed three (3) hours of time at $27.98 per hour to search, compile, segregate, redact and provide 54 copies through the mail, for a total cost of $90.14. As a result of the estimate, Mr. Birks petitioned the Supervisor of Records (Supervisor), and this appeal was opened. No records In its October 16th response, the Department has indicated that it does not have possession, custody or control of "recorded statements and booking sheets" for the identified individual. See G. L. c. 66, § 6A(d); see also 950 C.M.R. 32.06(3)(c)(2). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian ofrecords at the time of the request. See G. L. c. 4, § 7(26). There is no obligation to create a record in response to a public records request. 32 Op. Att'y Gen. 157, 165 (May 18, 1977). Previous appeal-SPRJS/1240 The requested records were the subject of a previous appeal and reconsideration of my determination. See SPR18/1240 Determinations of the Supervisor (August 29, 2018 and October 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

Officer Caron L. Porter SPR19/100 Page Two January 31, 2019 1, 2018). In my August 29th determination, I found that the Department did not meet its burden of specificity to withhold, in their entirety, the records pursuant to the Criminal Offender Record Information Act (CORI) as it operates through Exemption (a) of the Public Records Law. I also found the Department had not met its burden to withhold the records under Exemption (f). Accordingly, I ordered the Department to review the records, redact where necessary, and provide Mr. Birks with the responsive records, in a manner consistent with my August 29th order, the Public Records Law and its Regulations. In a September 10, 2018 letter, the Department requested reconsideration of my August 29th determination regarding its claim to withhold the records under CORI as it operates through Exemption (a). After another careful review of the Department's responses in which the Department still did not meet its burden of specificity to withhold, in their entirety, the records under Exemption (a) and Exemption (f), I declined to reverse my August 29, 2018 determination. On October 1, 2018, I ordered the Department, for a second time, to review the records, redact where necessary, and provide Mr. Birks with responsive records within 10 business days. Basis of the current appeal - fee waiver The basis of the current appeal, SPR19/100, is the requestor's objection to the fee estimate because he is indigent. In his January J1h petition, Mr. Birks seeks the Supervisor's intervention to order the Department to waive the estimated fees, except the $2.70 cost for copies of the records. While a records access officer (RAO) may waive the amount of any assessed fees where the requestor lacks the financial ability to pay the full amount of the reasonable fee, the Supervisor may not mandate that the RAO do so. See G. L. c. 66, § lO(d)(v); see also 950 C.M.R. 32.07(k)(3). Fee estimates If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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. 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(s) requested unless the municipality has 20,000 people or less. G. L. c. 66, § lO(d)(iii). Your October 16th estimate states, "[t]he Department is required to devote more than 2 hours of time to search for, compile, segregate,

Officer Caron L. Porter SPR19/100 Page Three January 31, 2019 redact and/or reproduce the requested records. In order to comply with [Mr. Birks'] request, it will take approximately five (5) hours of search, segregation, and redaction time ... [t]he total number of hours charged, will be 3 hours." However, the Department did not breakdown how much time is necessary to search for, compile, and copy the responsive records. The Department must revise its estimate to clarify the actual time, within the 3 hours, necessary to search for, compile, and copy the responsive records. 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, § lO(d)(iii). However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records through a petition filed under G. L. c. 66, § 10(d )(iv). The Department informed Mr. Birks that the lowest paid employee who has the necessary skill to complete the search and segregation has an hourly rate of $27.98. To the best of my knowledge, the Department did not file a petition and receive approval from the Supervisor to assess an hourly rate that exceeds the maximum of $25 per hour allowed by the Public Records Law. G. L. c. 66, § IO(d)(iii),(iv). Therefore, I find that the Department must revise its hourly rate. The Department has also charged Mr. Birks for the time to segregate and redact the responsive records under Exemption (a). However, I informed the Department in my August 29, 2018 and October 1, 2018 determinations that the Department did not meet its burden of withholding the records and/or portions of the records under the Criminal Offender Record Information Act (CORI) as it operates through Exemption (a). Additionally, the Department did not meet its burden of specificity to withhold portions of the records pursuant to Exemption (f). Nor did the Department file a petition with the Supervisor for approval to assess a fee for segregation or redaction for any portions of the records that may be withheld under Exemption (f). 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); see also 950 CMR 32.06(4 ). Whereas, I found in August and October 2018 that the Department did not meet its burden of withholding records and portions of the records under Exemption (a) and Exemption (f), the Department cannot assess a fee for segregation and redaction of the records. Therefore, the Department must revise its fee estimate by eliminating the number of hours that the Department has assessed for segregation and redaction of the responsive records.

Officer Caron L. Porter SPR19/100 Page Four January 31, 2019 Conclusion Accordingly, the Department is ordered to provide Mr. Birks with a revised fee estimate for the requested records, 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: Tommy Birks