Pat Bender v. Newburyport, City of - Police Department (SPR 20190797)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 1, 2019 SPR19/797 Richard Siemasko, Esq. Senior Lieutenant City of Newburyport - Police Department 4 Green Street Newburyport, MA 01950 Dear Attorney Siemasko: I have received the petition of Pat Bender appealing the response of the Newburyport 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 March 14, 2019; March 15, 2019 and March 18, 2019, Mr. Bender requested the Department's "daily log" for March 13, 2019; March 14, 2019 and March 15-17, 2019, respectively. The Department responded on March 25, 2019; March 26, 2019 and March 27, 2019, providing a fee estimate for each request. Objecting to the fees, Mr. Bender petitioned this office and this appeal, SPRl 9/797, was opened as a result. Fee estimates - municipalities 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. 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, § lO(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, § IO(d)(iv). 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

Richard Siemasko, Esq. SPR19/797 Page 2 May 1, 2019 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's March 25th, 26th, and 21h responses With respect to Mr. Bender's March 14th request, the Department indicated in its March 25, 2019 response that it" ... estimate[s] it will take 3 hours to process [Mr. Bender's] request." The Department assessed a fee of $71.64 and stated that records would be produced subject to redactions in accordance with the Massachusetts General Law. With respect to Mr. Bender's March 15th request, the Department indicated in its March 25, 2019 response that it". .. estimate[s] it will take 3 hours to process [Mr. Bender's] request." The Department assessed a fee of $46.64 and stated that records would be produced subject to redactions in accordance with the Massachusetts General Law. With respect to Mr. Bender's March 18th request, the Department indicated in its March 27, 2019 response that it" ... estimate[s] it will take 4 hours to process [Mr. Bender's] request." The Department assessed a fee of $96.66 and stated that records would be produced subject to redactions in accordance with the Massachusetts General Law. Mr. Bender paid the assessed fees and records were provided. In his appeal petition Mr. Bender indicates, in part, "I completely object to being charged a two hour/$46.64, a three hour/$71.64 and a four hour/$96.66 processing time fees for the Newburyport PD RAO ... to disclose what should be readily available and FREE to the public daily logs. G. L. c. 41, § 98F requires the Newburyport PD to make, keep and maintain a daily log. [As such] ... there should be no need for this Police Department to have to spend 2, 3, and 4 hours staff processing time and to charge me $214.94 in order to disclose three of this police departments daily logs .... 98F does not permit a public body to maintain its log in a manner that takes, 2, 3 and 4 hours o[f] staff processing time to disclose its required daily log nor does 98F allow for the Newburyport PD RAO ... to charge such an excessive fee for this public body's daily log." G. L. c. 41, § 98F provides the following: Each police department and each college or university to which officers have been appointed pursuant to section 63 of chapter 22C shall make, keep and maintain a daily log, written in a form that can be easily understood, recording, in chronological order, all responses to valid complaints received, crimes reported, the names, addresses of persons arrested and the charges against such persons arrested. All entries in said daily logs shall, unless otherwise provided in law, be public records available without charge to the public during regular business hours and at all other reasonable times; provided, however, that the following entries shall be kept in a separate log and shall not be a public record nor shall

Richard Siemasko, Esq. SPR19/797 Page 3 May 1, 2019 such entry be disclosed to the public, or any individual not specified in section 97D: (i) any entry in a log which pertains to a handicapped individual who is physically or mentally incapacitated to the degree that said person is confined to a wheelchair or is bedridden or requires the use of a device designed to provide said person with mobility, (ii) any information concerning responses to reports of domestic violence, rape or sexual assault, (iii) any entry concerning the arrest of a person for assault, assault and battery or violation of a protective order where the victim is a family or household member, as defined in section 1 of chapter 209A, or (iv) any entry concerning the arrest of a person who has not yet reached 18 years of age. (emphasis added). G. L. C. 41, § 98F. In light of the language of G. L. c. 41, § 98F, specifically that" ... [a]ll entries in said daily logs shall, unless otherwise provided in law, be public records available without charge to the public during regular business hours and at all other reasonable times," I find the Department has not met its burden to show how they can assess a fee for the production of these records. Redactions under the Public Records Law Further, in his appeal petition Mr. Bender claims that "[t]he name and address of the arrestees have wrongfully been redacted and withheld from disclosure. I understand some offenses such as but not limited to domestic violence arrests are not subject to disclosure but the RAO ... has wrongfully withheld the name and address of the arrestees listed on this daily log." Mr. Bender further claims that the "RAO ... has failed to adequately [cite] the statute which authorizes this public body to redact and therefore withhold the arrestee records ...." With respect to Mr. Bender's March 18th request, the Department redacted portions of the responsive records without claiming any exemption(s) to the Public Records Law that would support the redactions made in the responsive records. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Further, it does not appear the Department is invoking G. L. c. 41, § 98F(i)-(iv), which provides that certain entries are not public record. As a result, I find the Department did not meet its burden of demonstrating how the redacted portions of the records are exempt from disclosure. If the Department maintains the redacted portions are exempt from public disclosure, it must cite specific exemptions and the reasons the exemptions apply to withhold the redacted portions of the responsive records. Compliance with the requirements ofp roviding a response In Mr. Bender's petition for appeal, he indicates that "[t]he time it took for this public body to disclose its daily log is unacceptable. Not only did it take this public body a solid month to disclose the daily log responsive to a few of my written requests but the delay was further

Richard Siemasko, Esq. SPR19/797 Page 4 May 1, 2019 exacerbated by the fact this public body sent the log to me via the US mail. Electronic transmission of the records via email was clearly requested in my written requests." Please note that under the Public Records Access Regulations (Regulations), a records access officer (RAO) must "to the extent feasible, provide public records to a requester in electronic format unless the record is not available in electronic form or the requester does not have the ability to receive or access the records in electronic format and if feasible, in the requesters preferred format. In the absence of a preferred format, the records shall be provided in a searchable machine-readable form." 950 C.M.R. 32.04(5)(d). Mr. Bender further states "[t]he Newburyport PD, a public body, provided no response to [his March 6t\ 7th, 81 h, li1\ and 13th] written requests which requested a copy of the Newburyport PD daily log as required by 98F." Under the Public Records Law and its Regulations all requests for public records must be met with a response within ten business days ofreceipt of the request. G. L. c. 66, § lO(a)-(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § lO(b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. Further, 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, § 10(a )(ii), (b )(ii). Consequently, I find the Department must provide responses to these outstanding requests without delay. I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Accordingly, the Department is ordered to provide Mr. Bender 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: Pat Bender