Nicole M. Avitabile, Esq. v. Lowell, City of - City Solicitor (SPR 20200443)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 16, 2020 SPR20/0443 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, § lOA; 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 pr(;;vious determinations. SPR19/l894 Determinations of the Supervisor of Records (September 30, 2019; November 5, 2019); SPR19/2428 Determination of the Supervisor of Records (December 19, 2019); SPR20/034 Determination of the Supervisor of Records (January 22, 2020). In my January 22nd determination I ordered the City to 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 February 5, 2020. Attorney Avitabile appealed and SPR20/0443 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, § 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). 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. SPR20/0443 Page 2 March 16, 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, § 1O (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, § lO(d)(i). Of course, this can be mitigated by a narrowed request. G.L. c. 66, § lO(b)(vii)." The City previously provided information about the type ofredactions 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 (t). 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, § lOB, 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 its January 6th response the City asserted that with respect to the amount of time needed to produce records " ... 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 repo1is in order to be able to produce them electronically as requested by Attorney Avitabile." In my January 22nd determination I indicated that despite its response, it remained unclear how the City may assess a fee for the tasks described in the response. Specifically, the City had not established how it may assess a fee for 4 minutes per page. I indicated 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. The City provided additional information regarding its fee estimate in its February 5th response.

Stacie M. Moeser, Esq. SPR20/0443 Page 3 March 16, 2020 In its February 5th response you indicate "[i]n order to further describe our time estimate, the City and the Police Department together completed timed samples with several accident reports. As I unfortunately expected, the estimate of four minutes for each report was extremely conservative and, for a two page report, can reach eight minutes per record." With respect to the amount of time needed for each task, the City explains "[b]ased on the timed samples, the retrieval process requires between three to four minutes per record, and the redaction and rescanning process then requires an additional two to four minutes per record depending on the detail and decipherability of the handwritten repmi. Furthermore, the timed samples consisted of only two-page motor vehicle accident reports, but this process identified that numerous reports are actually four or more pages in length because more than two vehicles were involved." In her appeal petition Attorney Avitabile indicates, in paii, "[k]indly re-open your appeal as the City of Lowell's Response is not incompliance with your last order." However, as noted above, my prior order indicated that 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. The City provided this information in its February 5th response. As a result, based on Attorney Avitabile's appeal, it is unclear why she objects to the City's explanation of the time needed for these tasks. Consequently, this office is unable to opine on the fee estimate portion of the City's response. See 950 C.M.R. 32.08(l)(f) (all petitions for appeal shall be in writing and shall specifically describe the nature of the requestor's objections to the response or failure to issue a timely response). Attorney Avitabile may wish to clarify the nature of her objections. Communicating further in order to produce records In an attempt to communicate further regarding this request, the City asserts, in part, "[p ]erhaps Attorney A vitable can identify a certain incident in which she is interested by the names of the involved individuals or other specific infonnation? Alternately, as suggested in the determination, Attorney Avitabile could choose reduce the time period of her request or limit it by geographic area or other parameters." You also note that "[a]dditionally, the City has learned that the Lowell Police Department does not actually store the original motor vehicle crash reports and is instead required to provide them to the Massachusetts Registry of Motor Vehicles (25 Newport Avenue Ext., Quincy MA 02171; 857- 368-7417). The Registry of Motor Vehicles can therefore certainly serve as an alternate source of accident reports for Attorney Avitabile, perhaps with the added advantage ofleading technological resources. G.L. c. 66, § lO(b)(iii)." In her appeal petition Attorney Avitabile indicates, in part, "I have tried to reach out to Stacie Moeser" and she welcomes you to reach out to her. 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, § 1O (a)(i). The City must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § lO(a)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the

Stacie M. Moeser, Esq. SPR20/0443 Page 4 March 16, 2020 scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Sincerely, Rebecca S. Murray Supervisor of Records cc: Nicole M. Avitabile, Esq.