Nicole M. Avitabile, Esq. v. Lowell, City of - City Solicitor (SPR 20200034)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

January 22, 2020 SPR20/034

Stacie M. Moeser, Esq.

Assistant City Solicitor

City of Lowell - Law Department

City Hall, 375 Merrimack Street, 3rd Floor Lowell, MA 01852-5909

Dear Attorney Moeser:

. 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, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Avitabile requested “all police reports involving motor vehicle accidents in your possession, custody, or control, from 8/26/2019 to present to be sent to me in electronic format” (emphasis in original). The City initially provided a response to Attorney Avitabile on September 12, 2019,

Previous determinations

This request was the subject of previous determinations. See SPR19/1894 Determinations of the Supervisor of Records (September 30, 2019; November 5, 2019); SPR19/2428 Determination of the Supervisor of Records (December 19, 2019). In my December 19" determination I ordered the City to review the request and provide a written response to Attorney Avitabile, made in accordance with the Public Records Law, its Access Regulations and the order. The City provided a response on January 6, 2020. Attorney Avitabile appealed and SPR20/034 was opened as a result. :

The 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, § 10A(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).

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

Stacie M. Moeser, Esq. SPR20/034 Page 2 , January 22, 2020

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, § 10(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.

Current appeal Fee estimate

In correspondence dated October 15, 2019 the City 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, § 10(d)(i). Of course, this can be mitigated by a narrowed request. G.L. c. 66, § 10(b)(vii).”

The City previously provided information about the type of redactions within the responsive records; specifically, the City noted “. . . 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, § 10B, 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.” :

In my December 19" determination I found it was unclear whether the City complied with G. L. c. 66, § 10(e) when responding to this request. I also indicated it was 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, § 10(d). I noted that whereas Attorney Avitabile indicated she prefers obtaining the records in electronic format, the City had not established how it may assess copying costs to produce these records. See G. L. c. 66, § 6A(d). The City provided additional information regarding its fee estimate in its January 6" response.

In its January 6" response the City asserts that it complied with G. L, c. 66, § 10(e), which provides that 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, § 10(b)). You indicate that “Attorney Avitabile’s initial request was received by the Lowell Police Department (‘LPD’) on September 3, 2019. A response was promptly sent by the Keeper of Records for LPD on September 12, 2019.”

Stacie M. Moeser, Esq. SPR20/034 Page 3 January 22, 2020

With respect to the amount of time needed to produce records, you explain, in part, “... each crash report is completed by hand by the responding LPD police officer, The City unfortunately does not possess the technology required for the reports to be completed, compiled, redacted, and/or produced electronically.” You further noted “[t]o retrieve an accident ‘report, the process must be reversed, with each Motor Vehicle Crash Report individually retrieved; opened, and printed. The City must carefully read both pages of each report to identify details that must be redacted, as cited in the City’s previous correspondence, mark those redactions by hand, and then rescan the reports in order to be able to produce them electronically as requested by Attorney Avitabile.”

With regard to the cost to provide copies of records, you note that “[t]he City unfortunately lacks access to the technology that other municipalities possess to electronically compile, segregate, redact, and produce the Motor Vehicle Crash Reports and must instead proceed through numerous manual steps which incur significant time and expense.”

In her appeal petition Attorney Avitabile indicates she is “. . . not satisfied with the response and I do not feel that the response in any way, shape, or form, complies with [the Supervisor’s] most recent order.” In a January 10, 2019 response the City asserts that Attorney Avitabile did not adequately describe the nature of her appeal. In a January 10" email Attorney Avitabile refers to previous correspondence regarding this matter. It should be noted that she outlined her objections to the fee estimate in a November 21 email.

Despite its January 6" response, I find it remains unclear how the City may assess a fee ' for the tasks described above. Specifically, the City has not established how it may assess a fee for 4 minutes per page. The City must describe how much time will be needed to search for the records versus how much time will be needed to segregate and/or redact.

Please note that public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. See G. L. c, 66, § 10(a); 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); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). )

Attorney Avitabile and the City are encouraged to communicate in order to facilitate producing records efficiently and affordably. Attorney Avitabile may wish to narrow her request to include shorter time periods or specific topics. G. L. c. 66, § 10(a)(). The City must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § 10(a)(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 municipality to produce records sought more efficiently and affordably).

Conclusion

Accordingly, the City is ordered to review the request and provide a written response to

Stacie M. Moeser, Esq. SPR20/034 Page 4 January 22, 2020

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. Mur c

ray Supervisor of Records

cc: Nicole M. Avitabile, Esq.