Hayley Johnson v. Worcester, City of - Police Department (SPR 20191717)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth · Public Records Division Rebecca S. Murray Supervisor ofR ecords September 9, 2019 SPR19/1717 Joshua Marhmas Records Access Officer City of Worcester 9-11 Lincoln Square Worcester, MA 01608 Dear Mr. Martunas: I have received the petition of Hayley Johnson, a reporter for MassLive, appealing the response of the City of Worcester Police Department (Department/City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on June 27, 2019, Ms. Johnson requested a copy of: Any and all internal affairs documents in the [Department] filed from July 1, 2018 through today's date; and [a]ny and all internal affairs documents regarding [an identified Department officer], aside from the May 20, 2019 document I previously received. Previous appeal This request was the subject of a previous appeal. See SPR19/1500 Determination of the Supervisor of Records (August 1, 2019). In my August 1st detennination I ordered the Department to provide Ms. Johnson with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. It should be noted that this request is related to the subject of a separate appeal with this office that addressed redactions with certain responsive records. See SPR19/1657 Determination of the Supervisor of Records (August 28, 2019). The City responded on August 15, 2019 and Ms. Johnson appealed. SPR19/17I 7 was opened as a result. Current appeal On July 15, 2019, the Department provided Ms. Johnson with a $387.50 estimate for 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

Joshua Martunas SPR19/1717 Page2 September 9, 2019 1,055 pages of responsive records. In my August 1st determination I indicated that to the best of my knowledge the Department had not filed a petition to this office to assess fees for segregation and/or redaction of the records, nor did the Department claim any exemptions that would require such segregation and redaction by law. I found that the Department must revise its fee estimate regarding the segregation and redaction fees. The City's August 15th response provides additional infonnation regarding its fee estimate . . Fee estimates If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (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. 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 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, § 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 C.M.R. 32.06(4). The City's August 15th response indicates, in part, "[t]he city will perfmm redactions pursuant to Massachusetts General Laws, Chapter 4, § 7 cl. 26 (a), the statutory exemption." You assert that "[t]he responsive records contain Criminal Offender Record Infonnation concerning identifiable individuals, the disseniination of which is prohibited by M.G.L. c.6, § 167. The requested records contain juvenile offender record infonnation which the [C]ity is prohibited from disclosing pursuant to M.G.L. c. 119, §60A. The responsive records contain identifying info1mation of victims of adjudicated crimes which are not public records pursuant to M.G.L. c. 66, § lOB. The responsive records may contain additional information which the [C]ity is prohibited by law from disclosing pursuant to additional statutes not specified herein." You assert that "[t]he [C]ity must review the requested records in their entirety to determine what type of information is contained therein, and whether any other statutes

Joshua Martunas SPR19/1717 Page 3 September 9, 2019 prohibiting disclosure are applicable. Any applicable exemptions and statutes either pe1111itting or requiring redaction will be cited with specificity after review at the time the records are provided." The City indicates that its current fee estimate" ... is based on 993 pages of responsive records to one portion of your request, and 62 pages of records regarding a named employee. After receiving tlie [C]ity's initial cost estimate, you requested that the [C]ity provide the 62 pages of records regarding the named employee. Please note that the actual time expended to review these 62 pages ofrecords and apply redactions required by law totaled 2 hours." The City provides the following information regarding the estimated amount of time needed to produce records: - 993 pages@ I minute per page (16.5 hours)@ $25.00/hour $412.50 -62 pages provided on 8/5/19 (2 hours actual employee time@ $25.00/hour) $50.00 -Two hours, free of charge@ $25.00/hour = -$50.00 -TOTAL CHARGE TO REQUESTER = $412.50 In her appeal petition Ms. Johnson asserts "I argue that explanation still does not demonstrate how portions of the responsive records are exempt from disclosure." She also notes "I contend that explanation still does not meet the burden of demonstrating how the responsive . records are exempt from disclosure and, therefore, why a fee is being assessed for time spent segregating and redacting." Ms. Johnson further contends "[a]dditionally, while the original cost estimate received from the Worcester Police stated the 62 pages pertaining to Officer Miguel Lopez would take one hour for the city to prepare, the August 15, 2019 response states the 62 pages accounts for two hours of work. The updated cost estimate from the Worcester Police totals $412.50. The city did not advise us of that change before providing the records pertaining to Officer Miguel Lopez." In light of the explanation in its August 20th response regarding the applicability of statutes that operate through Exemption (a), I find the City has met its burden to explain how these records may contain information that is required by law to be segregated and/or redacted. Therefore, I find the City may assess a fee for this segregation and/or redaction time. See G. L. c. 66, § 10( d)(iii). However, it is unclear why the estimated amount of time to produce records is necessary. In particular, it is unclear why the fee estimate increased to $412.50. Further, it is unclear how the City arrived at its estimate of 1 minute of review time per page. See G. L. c. 66, § 10(d )(iv) (requiring the amount of the fee must be reasonable). The City must clarify this matter: This office encourages the City and Ms. Johnson to communicate further to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 1O (b )(vii) (a municipality

Joshua Martunas SPR19/1717 Page 4 September 9, 2019 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 municipality to produce records sought more efficiently and affordably). Burden ofs pecificity; redactions With respect to Ms. Johnson's contention that the City did not meet its burden of demonstrating how the responsive records are exempt from disclosure, I find that this portion of her appeal is premature. In the event that the City provides records with portions redacted and/or withheld, Ms. Johnson may appeal the substantive nature of that response within 90 calendar days. See 950 C.M.R. 32.08(1). Conclusion Accordingly, the City is ordered to provide Ms. Jolmson with a response to the request, provided 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: Hayley Johnson