Maya Shaffer v. Worcester, City of - Police Department (SPR 20192094)

The Commonwealth of Massachusetts William.Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 25, 2019 SPR19/2094 Joshua Martunas Staff Assistant/Records Access Officer City of Worcester - Police Depaiiment 911 Lincoln Square Worcester, MA 01608 Dear Mr. Martunas: I have received the petition ofMya Shaffer of Critical MA News appealing the response of the Worcester 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 September 16, 2019, Ms. Shaffer requested the following records: "[l] All reports including but not limited to arrest rep01is and use of force reports related to the a1Test of multiple people and the tasing of a pastor .... [2] Copies of all officers involved in the pastor tasing incident's police ID cards [3] Copies of all officers involved in the pastor tasing inctdent's IA files (including but not limited to all complaints made about the officers) [4 ] Copies of any video or photos of the incident or aftermath including but not limited to any police camera footage and any recorded evidence of the injury sustained by the officer. [5] All department policies related to use of a taser. [6] All arrest reports that include the charge 'intei'fering with a police officer' or 'obstruction of a police officer' for the last 6 months." The Department responded on October 1, 2019, providing certain responsive records in redacted form, pursuant to Exemption ( c ), and denying access to other records, pursuant to Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). The Department also provided a cost estimate in its October 1st response. On October 3, 2019, the Department provided a revised cost estimate. Unsatisfied with the Department's response, Ms. Shaffer petitioned this office and this appeal, SPRl 9/2094, was opened as a result. It appears Ms. Shaffer is only appealing the records withheld under Exemption (a) and the cost estimate. 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 SPR19/2094 Page 2 October 25, 2019 Tlte 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, § lO(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. 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. The Department's October pt response Police ID cards In its October 1, 2019 response, the Department indicates that it withheld police ID cards pursuant to Exemption (a). Citing the language of the statute, the Department states that "501 C.M.R. 15.05 (2)(c) provides that 'Law Enforcement Officers shall not loan or give their identification cards to any person, other than a superior officer of their Law Enforcement Agency.' 501 C.M.R. 15.00 sets forth standards and requirements for security related to identification cards for active duty law enforcement officers in order to prevent security risks inherent in forged law enforcement credentials. Accordingly, the [Department] cannot disclose the requested records." Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway

Joshua Martunas SPR19/2094 Page 3 October 25, 2019 Newspapers, Inc. v. Appeals Comi, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Bureau ofP rofessional Standards Reports and BWC Footage In its October 1st response, the Department states that "[i]n order to release the requested records [it] must perform redactions required by law. Due to the nature of the records requested and a preliminary review of a sample of the records by the law department, the [Department] has determined that there is a high likelihood that the requested records contain information which the [Department] is prohibited by law from disclosing ...." The Department indicates that it will perform redactions under Exemption (a), because the records " ... contain Criminal Offender Record Information concerning identifiable individuals, the dissemination of which is prohibited by M.G.L. c.6, §167. The requested records may contain juvenile offender record information which the [Department] is prohibited from disclosing pursuant to M.G.L. c. 119, §60A. The responsive records contain identifying information of victims of adjudicated crimes which are not public records pursuant to M.G.L. c. 66, § 10B." The Department nniher states that". .. responsive records may contain additional information which [it] is prohibited by law from disclosing pursuant to additional statutes not specified herein[,]" and would have to review the records to make that determination. The Department posits that it would require 2 minutes to review each page of the responsive records. The Department explains that "Bureau of Professional Standards Reports completed in 2018-2019 contain an average of 350 to 450 words per page; portions of these reports include dense narratives containing over 600 words per page." As such, the Department states that where "[t]he information [that require redaction], may be woven throughout the document in various of forms; proper review and redaction often requires multiple readings and review ...." Hence, "[r]edactions are applied individually, one at a time throughout the document, to ensure accuracy and thoroughness ...." In addition, the Department states that due to the nature of the BWC Footage, it" ... must be carefully screened and accordingly redacted to ensure that audio related to incidents of domestic violence, including the names of individuals involved and locations of incidents, are not disclosed incident to BWC footage" and cites G. L. c. 41, § 97D.

Joshua Maiiunas SPR19/2094 Page 4 October 25, 2019 The Department states that "[e]mployees working in an administrative or clerical position are not capable of reviewing these documents and recordings, as they lack the comprehensive understanding of the applicable laws required for proper redaction. The City Solicitor, Assistant City Solicitors, and the city's Records Access Officer are the only city employees who possess the proper knowledge and ability required to review and segregate these.records." The Department notes that its" ... employee with technical capabilities to apply redactions to BWC footage has an hourly rate which exceeds $25.00 per hour. The Records Access Officer is the lowest paid employee capable of performing the review; the RA O's hourly rate exceeds $25.00 per hour. For purposes of this estimate, the [Department] has reduced all hourly labor charges to $25.00 per hour." The Department indicates that "[i]t is estimated that it will take approximately 2.5 minutes per minute of footage to review BWC footage and apply redactions required by law." Based on the foregoing, the Department provides the following cost estimate: "[p]reliminary search locating all responsive records (incl. attached) 15 min.@ $25.00/hr. = $6.25[;] [r]eview and redact approx. 17 minutes of video (45 min.)@ $25.00/hr = $18.75[;] [r]eview and redact 63 pages (2 min per page)@ $25.00/hour = $50.00[;] [t]wo hours, free of charge@ $25.00/hour = -$50.00[;] [t]otal charge= $25.00." The Depaiiment indicates that where this is a good faith estimate, it will advise Ms. Shaffer if the actual cost differs, and notes that upon receipt of payment, it will require an additional 15 business days to provide requested records. The Department's October 3rd revised cost estimate On October 3, 2019, the Department provided a revised fee estimate which includes the cost for producing "[a]ll arrest reports that include the charge 'interfering with a police officer' or. 'obstruction of a police officer' for the last 6 months." The Department explains that it "has located 33 incidents involving the charge of interfering with a police officer, resulting in 182 reports of varying lengths, averaging 3 pages per report." The Department states that the" ... records contain information which [it] is prohibited by law from disclosing and which must be redacted pursuant to Massachusetts General Laws, Chapter 4, § 7 cl. 26 (a), the statutory exemption." The Department cites G. L. c. 41, § 97D; G. L. c. 6, § 167; G. L. c. 119, § 60A and G. L. c. 66, § lOB. Consequently, the Department provides the following cost estimate: "[p]reliminary search locating all responsive records (incl. attached) 15 min.@ $25.00/hr. = $6.25[;] [r]eview and redact approx. 17 minutes of video (45 min.)@ $25.00/hr = $18.75[;] [r]eview and redact 63 pages (2 min per page)@ $25.00/hour = $50.00[;] [r]eview and redact approx. 546 pages (2 min per page)@ 25.00/hr = $455.00[;] [t]wo hours, free of charge@ $25.00/hour = -$50.00[;] [t]otal charge= $480.00." 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, § lO(d). The fees must reflect the actual cost of complying with a paiiicular request. Id. A maximum fee of five cents

Joshua Martunas SPR19/2094 Page 5 October 25, 2019 ($.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 pmi 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, § 10( 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, § 10(d )(iv). See G. L. c. 66, § 10( d)(iii); 950 C.M.R. 32.06(4 ). Subsequent to the opening of this appeal, this office received a supplemental response from the Depmiment dated October 24, 2019. This response contains additional information regarding the Depmiment's exemption claims and the issues raised in Ms. Shaffer's appeal. I find that in light of the October 24th supplemental response, I will consider this administrative appeal closed. Ms. Shaffer may appeal the substantive nature of the Department's response within ninety days. See 950 C.M.R. 32.08(1). This office can provide Ms. Shaffer a copy of the Department's October 24th response upon request in the event that she has yet to receive it. Sincerely, Rebecca S. Murray Supervisor of Records cc: Maya Shaffer