Erivaldo Silveira v. Southbridge Police Department (SPR 20200247)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 12, 2020 SPR20/0247 Officer Gerald Arvelo Southbridge Police Department 1 Mechanic Street Southbridge, MA 01550 Dear Officer Arvelo: I have received your petition on behalf of the Southbridge Police Department (Department) seeking an extension of time to furnish copies of a requested record, or any portion thereof, as well as to charge in excess of $25.00 per hour in responding to a request made by Erivado Silveria. As required by law, the Department furnished a copy of these petitions to the requester. G. L. c. 66, § lO(d)(iv). On February 4, 2020, Mr. Silveria requested several categories of records invoving "[a]ll email communication between the Chief of Police and the Town Manager pertaining to Ms. Silveria." Petitioll 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, § 10( 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 additi0nal 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 petition to allow the agency 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 Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Officer Gerald Arvelo SPR20/0247 Page2 February 12, 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 inspection. 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, § lO(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). Petitions for an extension of time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction. required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension;

Officer Gerald Arvelo SPR20/0247 Page 3 February 12, 2020 (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series ofrequests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § lO(c). The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requester within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Current Petition In its petition dated February 6, 2020, the Department requests approval to assess fees for costs associated with responding to a public records request. The Department states that "Criminal Offender Record Information, domestic abuse & sexual assault cases, home address, telephone number & personal email address of certain personnel, name, home address, telephone number & personal email address of family members of certain personnel, victim information, firearm ownership & license information" would be subject to redaction under the Public Records Law. Further, the depmiment further asserts that communication from the Chief of Police "to the Town Manager may contain information which falls under exemption ... due to communicating issues and concerns of safety and security within the Town." Additionaly, the Department asserts that due to a police station remodel and the fact that responsive emails are in sole custody of the Chief of Police, the Department will need additional time to produce, segregate and redact the requested records. Conclusion Accordingly, I find the Depmiment has established good cause for a time extension of 15 business days as described above. Further, in light of the Depmiment's petition, I find the Department has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the Department may assess a fee for segregation and redaction. However, this allowance is limited to the rate of $64.24 per hour. To the extent possible, the Department must provide responsive records on a rolling basis. This office encourages Mr. Silveira and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § lO(b)(vii). Any fee estimate by the Department must be in compliance with this determination, the Public Records Law, and its Access Regulations. Please note, Mr. Silveira has the right to seek judicial review of this decision by

Officer Gerald Arvelo SPR20/0247 Page 4 February 12, 2020 commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d )(iv)( 4 ), lOA(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Erivaldo Silveira