Seth Kershner v. Great Barrington, Town of - Office of the Town Clerk (SPR 20190701)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 12, 2019 SPR19/701 Marie Y. Ryan, CMC/CMMC Town Clerk .T own of Great Barrington 334 Main Street Great Barrington, MA 01230 Dear Ms. Ryan: I have received the petition of Seth Kershner appealing the response of the Town of Great Barrington - Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Mr. Kershner requested records from January 1, 2013 until the date of the request, specifically: 1. All after-action reviews, incident reports, use of Taser reports and other documentation for each time a [Department] officer deployed their Taser; and 2. Any training manuals, PowerPoint slides, policy guidelines and other training materials - in any form of - media-made or received by your [D]epartment relating to use of the Taser or other Electronic Control Weapons. Waiver off ees As a member of the news media, Mr. Kershner requests that the Department waive any copying costs. He states, "[i]f you decide not to waive copying costs, I ask that you permit me to examine, at my election, the responsive documents before deciding which portions to photocopy." Please be advised the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request. Under the Public Records Law, the records access officer may waive or reduce the amount of any fee charged upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. See G. L. c. 66, § lO(d)(v); see also 950 C.M.R. 32.07(2)(k). 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

Marie Y. Ryan, CMC/CMMC SPR19/701 Page 2 April 12, 2019 A review of the Department's January 29, 2019 and March 14, 2019 responses did not address Mr. Kershner's request for a fee waiver. Nor did the Department advise Mr. Kershner whether any of the records are readily available for him to review prior to seeking copies. The Department's January 29, 2019; March 14, 2019 and March 18, 2019 responses In its January 29th response, the Department provided Mr. Kershner with the number of reportable incidents to the state involving electronic control weapons for 2013, 2014, 2015, 2016, 2017 and 2018. The Department also informed Mr. Kershner that the training materials are provided by AXON (Formerly TASER International) and can be found on their website. When no actual reports were provided, Mr. Kershner emailed the Department on February 28th stating, "[h]ere is the original request [I] sent in December. You'll see that it's quite clear in requesting reports "for each time a [Department] officer deployed their Taser." In a March 14th response, the Department provided a fee estimate for 29 incident reports and assessed 27 hours for creation of each report at $28.69 per hour for a total of $774.63. Mr. Kershner asked the Department to clarify, stating, "Does this mean that the [Department] never completed individual use of force reports following each Taser deployment?" The Department provided a second response on March 18th, explaining the process after deployment of an electronic control weapon. Your response indicates: "[w]hen an electronic control weapon (ECW) is deployed it generates a use of force report. Depending on the type of incident it was deployed in it would generate that corresponding report. Use of force (UOF) reporting is then reviewed by the Chief and a Taser instructor. Once that is complete the UOF report gets filed in the arrest reports and copies are then maintained by the OIC ofECW's and by the Chief. In regards to my estimate, I have no way to electronically search for ECW deployments. I will need to pull the entire UOF ECW file and pick out each date. I will then have to search that date and find the exact report from that day in which the ECW was deployed. I will then have to take each one of those reports and review and redact sensitive information for release ... " As a result of the Department's conflicting responses regarding whether the "use of force" reports are generated by computer or in writing upon the deployment of the weapon, or whether the report must be created in response to the request, Mr. Kershner petitioned the Supervisor of Records (Supervisor) for assistance, and this appeal was opened. Fee estimates 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 ). A municipality

Marie Y. Ryan, CMC/CMMC SPR19/701 Page 3 April 12, 2019 must provide a written response within ten business days, which can include an itemized, good faith estimate of any fees that may be charged to produce the records. G. L. c. 66, § 1O (b )(viii). 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). Municipalities may not assess a fee for the first two 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, § lO(d)(iii). The Department's estimate indicates that the first two (2) hours of the 29 hours estimated are free to "create" (redacted, sorted and search). 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. The Department's March 14th estimate states, "$28.69 the lowest hourly rate of the person within the [D]epartment capable of doing the work." However, municipalities may not charge more than $25 per hour, unless such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(d)(iv). To the best of my knowledge, the Department has not filed a petition to charge in excess of the $25 per hour maximum rate. Therefore, the Department must revise its hourly rate to the lowest paid hourly rate capable of completing each task, and no greater than the maximum of $25 per hour allowed by the Public Records Law. See G. L. c. 66, § 10( d)(iii). The Department also asserts in both its March responses that certain sensitive information must be redacted from the records. Its estimates list "redacted" as part of the one (1) hours' worth of time for each of the 29 incident reports. However, the Department did not claim any exemptions that apply to content within the "use of force" reports that must be redacted, or the amount of time allocated to segregation and redaction. Please be advised, 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 C.M.R. 32.06(4). The Department did not claim any exemptions under Exemption (a) and/or the attorney-client privilege to account for its charges to segregate and redact material by law. To the best of my knowledge, the Department has not filed a petition to charge fees for segregation or redaction. At issue in this appeal is the Department's lack of clarity concerning what records the Department actually possesses that are responsive to Mr. Kershner's request. Please be advised, 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, § lO(a)(ii). Under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to a public records request. See G. L. c. 66, § lO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). However, under the Public Records

Marie Y. Ryan, CMC/CMMC SPR19/701 Page4 April 12, 2019 Law, a records access officer must 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. See G. L. c. 66, § lO(b)(ii); 950 C.M.R. 32.06(3)(c)(2). I find that the Department has not met its burden of specificity in responding to this request, and it must clarify this matter. See G. L. c. 66, § lO(d). Additionally, I find that the Department must revise its estimate. This office also encourages Mr. Kershner and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 1 O(b )(vii) ( a municipality shall 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 to produce records sought more efficiently and affordably). Conclusion Accordingly, the Department is ordered to provide Mr. Kershner with a revised estimate for the request, in a manner consistent with this order, the Public Records Law and its Regulations within 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: Seth Kershner William Welch, Chief of Police