Maryan Amaral v. North Attleboro, Town of - Police Department (SPR 20200435)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 11, 2020 SPR20/0435 Jane Gannon Town of North Attleboro Police Department 102 South Washington Street Nmih Attleboro, MA 02760 Dear Ms. Gannon: I have received the petition of Marya n Amaral, Director of Citizens for Access, Inc., appealing the response of the Town of North Attleboro Police Department (Depaiiment) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on February 13, 2020, Ms. Amaral requested: 1. [Identified Depaiiment] Officer's badge number; 2. Date [identified] Officer was first appointed or assigned as a [Department] Officer; 3. Copy of any documents of current or past fire-arm licenses issued to [a n identified Officer] (last 10 years) including: A. Current MTCP firms instructor certification(s); B. Current NRA firearms instructor certification(s); · C. Current SigSauer firearms instructor certification(s); D. Past MTCP, NRA and SigSauer firearms instructor certification(s); E. Copy of most recent certifications in the past 4 years for carrying a firearm including location, date, and signature of those who issued the certificate; F. Copies of any documents of disciplinary measures or awards in relation to [the Identified] Officer's certification for firearm instruction or carrying a firearm; G. Any firearm instructor certifications for [an Identified Department Sergeant] from 2010 to present; H. Documents of [a n identified Officer's] arrest record, criminal citations, and convictions from January 2017 to December 2019 to include all "impaired" driver's (DUI's, driver's with disabilities, etc.); I. Copy of the automatic license plate reader (ALPR) feeds on the dates from March 20-March 22, 2019; and J. Copy of any licenses or certificates to allow [the Department] to use the ALPR. 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

Jane Gannon SPR20/0435 Page 2 March 11, 2020 In addition in her request to the Department, Ms. Amaral seeks a waiver of all fees for this request; an attachment of documents in PDF format to save postage costs; and if there is a charge, provide an estimate in writing and in advance. On February 28, 2020, the Department, through its Legal Counsel Janelle M. Austin of KP Law, P. C., provided a response including a fee estimate for two (2) hours of search and compilation ofrecords totaling $50.00. The Department provided information responsive to Ms. Amaral's Requests 1 and 2. As a result of the fee estimate and the Department's statement regarding firearm licenses of an identified officer, Ms. Amaral petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Waiver off ees In Ms. Amaral's petition she requests that the Town waive applicable fees. Ms. Amaral is advised that while a record custodian may waive applicable fees, the Supervisor has no authority to order that a record custodian do so. No responsive records The Department's February 23th response indicates that after a diligent search it does not have any records responsive to Ms. Amaral's Requests 3 (A)-3(D) and Request 3 (I). Ms. Amaral is advised, the duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). There is no obligation to create a record in response to a public records request. 32 Op. Att'y Gen. 157, 165 (May 18, 1977). In her February 23th petition to the Supervisor, Ms. Amaral still questions why the Town would not have in its possession a license to carry a firearm for the identified officer, an instructor of Tactical Dynamics Firearms Training, LLC. Ms. Amaral posits, "[i]t is assumed that a police office is licensed to carry firearms. If [the Department doesn't] have it because he is unlicensed, this information needs to be presented." Accordingly, wh~reas Ms. Amaral still raises questions pe1iaining to the identified officer's license to carry a firearm, I find that the Depaiiment must clarify this issue. 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, § 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).

Jane Gannon SPR20/0435 Page 3 March 11, 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, § IO(b)(iv) (written response must "identify any records, categories of records or p01iions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 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). Fees -Municipalities If there are any fees associated with a response a written, good faith estimate must be · provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 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) 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 $25 per how if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10( d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § IO(d)(iii); 950 C.M.R. 32.06(4). The Department's February 28, 2020 fee estimate The Department informed Ms. Amaral that it will not waive any applicable fees, and will conduct an extensive search over multiple-year periods to compile responsive records. The Depmiment assessed a search and compilation fee for the executive assistant to the Police Chief for 4 hours of time, reduced to 2 hours as required at$ 25.00 per hour. The Department explained that the population of the Town is 28,712; thus, the Town/Department reduced 2 hours from its fee estimate, which the Department has done in accordance with the Public Records Law. See G. L. c. 66, § 10(d )(iii).

Jane Gannon SPR20/0435 Page4 March 11, 2020 The Depaiiment asserted that the Police Chiefs executive assistant is paid at $33.50 per hours; however, the Depaiiment will only charge $25.00 per hour for her time as required by the Public Records Law. G. L. c. 66, § 10(d )(iii). The Department indicates that it quoted the hourly rate of the lowest paid person capable of searching and compiling the responsive records. It is my understanding from a review of the Department's response that the fee estimate is only for a search and compilation of the records responsive to Ms. Amaral's request. The Department stated in its response that it will conduct the 2 hour search and compilation of records, and then advise Ms. Amaral what records responsive to her request it has in possession, care and control, and of which it can provide in their entirety or in redacted format. At that time, the Department will provide her with a further estimate for any segregation and redaction it may charge as required by law, such as the Department's claim of attorney-client privilege. See Suffolk Construction Co. v. Div. of Capital Asset Mgmt, 449 Mass. 444, 449-450 (2007); 950 C.M.R. 32.06(3). Please be aware, the Department may not assess any 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). The Department indicates that it will work with Ms. Amaral to clarify and modify the scope of the request, such as limiting the timeframe or scope of the topics. I find that clarification and modification of the requested records may allow the Department to provide records in a more efficient and expeditious manner. To that end, I encourage the parties to work together to satisfy this request, and provide a further response or estimate that may reduce the fees after the search and in fulfillment of the requested records. Conclusion Accordingly, the Department is ordered to provide Ms. Amaral with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations 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, ~r~ Supervisor of Records cc: Marya n Amaral Janelle M. Austin, Esq., KP Law, P. C.