Nicole M. Avitabile, Esq. v. Lowell, City of - Law Department (SPR 20192428)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 19, 2019 SPR19/2428 Jackie Cook Keeper of Records Lowell Police Department 50 Arcand Dr. Lowell, MA 01852 Dear Ms. Cook: I have received the petition of Attorney Nicole M. Avitabile appealing the response of the City of Lowell 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, Attorney Avitabile requested "all police reports involving motor vehicle accidentsin your possession, custody, or control, from 8/26/2019 to present to be sent to me in electronic format" (emphasis in original). The Department provided a response to Attorney Avitabile on September 12, 2019. Previous determinations This request was the subject of previous determinations. See SPRl 9/1894 Determinations of the Supervisor of Records (September 30, 2019; November 5, 2019). In my November 5111 determination I ordered the Department to review the request and provide a written response to Attorney Avitabile, made in accordance with the Public Records Law, its Access Regulations (Regulations). The Department provided a response on November 21, 2019. Attorney Avitabile appaeled and this appeal was opened as a result. Tile 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 Dist. 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

Jackie Cook SPR19/1894 Page 2 December 19, 2019 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. Current appeal In its September 12th response the Department denied access to responsive records under Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c); Driver Privacy Protection Act, 18 U.S.C. 2721. In my September 30th determination I found it was unclear how the withheld records are exempt under Exemption (a). Specifically, I found it was unce1iain how all of these records contain information "specifically or by necessary implication exempted from disclosure." I also found the Department's response did not address how the withheld information constitutes personnel information, nor did it address the factors articulated in People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280,292 (2017). As a result, I indicated the Department had not established how the withheld information is exempt under Exemption ( c ). Fee estimate In correspondence dated October 15, 2019 the Department indicated "Ms. Avitabile has requested all motor vehicle reports from August 26, 2019, to September 3, 2019, in the City of Lowell. There are approximately 90 responsive records. The City estimates that it will take in excess of 10-15 hours beyond the two statutory hours to complete at a rate of $25 per hour, for a total of$250-375, in addition to any costs of materials. See G.L. c. 66, § lO(d)(i). Of course, this can be mitigated by a narrowed request. G.L. c. 66, § lO(b)(vii)." In its November 21st response the Department provided additional information regarding the fee estimate. Attorney Avitabile informed this office that she objects to this fee estimate. A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10( d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for black and white copies for both single and double-sided copies of a public record. G. L. c. 66, § 10( 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, § 10( 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).

Jackie Cook SPR19/1894 Page 3 December 19, 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). In its November 2ist response the Department indicates "[f]irst, the City must search all of the accidents in the electronic system. Each accident must then be individually opened and printed, since the database lacks the capability to enable electronic redactions." You also note that "[t]he City estimates that these steps will take approximately two minutes per record, therefore for 90 records it would reach three hours -thus exceeding the two statutory hours by approximately one hour, for a cost of approximately twenty-five dollars ($25). Additionally, since each record consists of two-pages, a total of 180 pages would be printed at a charge of five cents ($0.05), thus adding a cost of nine dollars ($9)." With respect to the amount of time needed to produce records, the City indicates that " ... each page must be read and manually redacted. The repmis then have to be rescanned for electronic production to Attorney Avitabile, in order to comply with her requested method of delivery. The City estimates that the review, redaction, rescanning, and production process will require at a minimum four minutes per page, therefore for 180 pages it will take twelve additional hours at a total cost of three hundred dollars ($300)." The City also provides information about the type of redactions within the responsive records; specifically, the City notes" ... the redactions to be completed by the City are required by Massachusetts General Laws c. 4, §§7(26)(a), (c), and (f). Depending on the nature of each incident, this may include names, residential street addresses, personal telephone numbers, social security numbers, driver's license numbers, and medical information." The City further provides, in part, "[s]everal redactions are statutorily required pursuant to G.L. c. 4, §7(26)(a). Under G.L. c. 66, § 1O B, the City must redact personal identifying information of victims of crimes, which may apply to operators, passengers, and/or pedestrians in the motor vehicle accident reports." Despite its November 21st response, it is unclear whether the City complied with G. L. c. 66, § lO(e) when responding to this request. See G. L. c. 66, § lO(e) (a records access officer (RAO) may not charge a fee unless the RAO provides a written response within 10 business days following the receipt of the request in compliance with G. L. c. 66, § lO(b)). Fmiher, it is unclear how each of the steps comprising the City's estimate of 4 minutes per page, specifically "review, redaction, rescanning, and production process," are the type of activities for which the City may assess a fee under G. L. c. 66, § IO(d). In addition, although certain redactions within the responsive records may be required by law, the City has not established why it requires the amount of time it estimates to review for exempt information. Furthermore, whereas Attorney Avitabile indicated she prefers obtaining the records in electronic format, the City has not established how it may assess copying costs to produce these records. See G. L. c. 66, § 6A( d) (the RAO shall, to the extent feasible, provide the public record in the requestor's preferred format or, in the absence of a preferred format, in a searchable, machine readable format).

Jackie Cook SPR19/1894 Page4 December 19, 2019 Conclusion Accordingly, the Department is ordered to review the request and provide a written response to Attorney Avitabile, made in accordance with the Public Records Law, its Access Regulations and this order 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: Nicole M. Avitabile, Esq.