Wheeler Cowperthwaite v. Norwell, Town of - Town Administrator (SPR 20200083)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 23, 2020 SPR20/0083 Peter Morin Town Administrator Town of Norwell 345 Main Street Norwell, MA 02061 Dear Mr. Morin: I have received your petition on behalf of the Town of Norwell (Town) requesting permission to charge for time spent segregating or redacting responsive records as well as to charge an hourly rate over $25. G. L. 66, § lO(d)(iv). As required by law, the Town furnished a copy of this petition to the requestor. G. L. c. 66, § lO(d)(iv). On January 27, 2019 the Town received a request for records from Wheeler Cowperthwaite for "[a]ll internal affairs investigations conducted in 2019." Petition to Assess Fees 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 (Supervisor) under a petition under G. L. c. 66, § 10 (d)(iv). G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § lO(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality's petitiori to allow the municipality to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § lO(d)(iv). It is my determination that this request was not made for a commercial purpose. One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Peter Morin SPR20/0083 Page2 January 23, 2020 The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspe~tion. G. L. c. 66, § lO(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, § 10( d)(i). Municipalities may not assess a fee for the first two 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). 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06( 4)(g). Current Petition In its January 15th petition, the Town indicates that the report sought by Mr. Cowpe1ihwaite was "not initiated by a citizen complaint. It is a complaint arising in the employment context." Further, citing Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792 (2000), "a disciplinary report prepared by a Superintendent of Schools was held by the Supreme Judicial Court to be part of a personnel file and exempt from disclosure. This is consistent with the definition of a personnel record contained in M.G. L. c 149 section 52C which states a record 'is used or has been used or may affect or be used relative to that employee's qualification for employment, promotion, transfer, additional compensation or disciplinary action.' The report sought by you was prepared to determine whether or not

Peter Morin SPR20/0083 Page 3 January 23, 2020 disciplinary action was warranted. It clearly falls under the statutory definition and in accordance with Wakefield is exempt from disclosure." The Town further asse1is that "careful redaction of this report is essential since inadvertent disclosure could expose the Town to liability. In Wagner v. City of Holyoke, 241 F. Supp. 2d 78 (D. Mass. 2003) the Massachusetts District Court held that the disclosure of facts between employees can be sufficient to violate an individual's privacy. The Supreme Judicial Comi has found that disclosure of private facts among employees can constitute sufficient publication under the Massachusetts privacy statute. Bratt v. IBM, 392 Mass. 508 (1984). There is even case law that states that a supervisor providing his recommendations to a disciplinary board enjoys only a conditional or qualified privilege. Mulgrew v. City of Taunton, 410 Mass. 631 (1991)." With regard to assessing fees to provide records, the Town states that "Attorney Paul Hodnett bills the Town of Norwell at the rate of $175 per hour" and that "he will be reviewing two reports that total approximately 145 pages. It would take approximately four and one-half hours for him to review and redact this material." Internal affairs records Please note that the courts have contrasted the public status of disciplinary investigation materials of law enforcement personnel from the "ordinary evaluations, performance assessments, and disciplinary determinations" included in the public records exemption for "personnel [file] or information" for.other public employees due to the significance of maintaining the transparency of the police department's internal affairs process. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 2 (2003). The Appeals Comi reasoned that openness in a police internal affair investigatory process, facilitated by the release of the relevant documents, was necessary to foster the public trust in law enforcement. Id. at 7-8. See Leeman v. Cote, 21 Mass. L. Rep. 411 (2006) (rejecting a police department's attempt to distinguish Worcester on the basis of the identity of the requestor and the absence of issues of theft, bribery, acceptance of gratuities, verbal or physical abuse, unlawful arrest, or harassment). I find that in light of the Worcester and Leeman decisions described above, as well as the public interest in disclosure of internal affairs records, the Town has not established why an attorney must review the responsive records for exempt material under Exemption ( c ). Therefore, I decline to grant the Town's petition to be allowed to charge in excess of $25 per hour to produce these records. I understand Mr. Cowperthwaite has appealed the Town's fee estimate associated with· producing these responsive records. This office will address Mr. Cowperthwaite's objections to the fee estimate during the review of said appeal, SPR20/081.

Peter Morin SPR20/0083 Page 4 January 23, 2020 Sincerely, ~ I T ~ Supervisor of Records cc: Wheeler Cowperthwaite