Maryan Amaral v. North Attleboro, Town of - Police Department (SPR 20200568)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 2, 2020 SPR20/0568 John J. Reilly, Chief North Attleboro Police Department 102 South Washington Street North Attleboro, MA 02760 Dear Chief Reilly: I have received the petition of Maryan Amaral, Director of Citizens for Access, Inc., appealing the response of the North Attleboro Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically on March 6, 2020, Ms. Amaral requested, "l .... the documents to show all payments to the private attorney firm, payments to Janelle Austin, Esq., and others in the firm hired to respond to our public record/FOIA requests from September 15, 2019 to present. Attach copies of contract, invoices and receipts of all payments using public tax dollars. 11 2. 11 the name and contact information of the Keeper of Records at the North Attleboro ••• Police Department... 11 In addition, in her request to the Department, Ms. Amaral seeks a waiver of all fees for this request. The Department responded on March 20, 2020 and unsatisfied with the response, Ms. Amaral petitioned this office and this appeal SPR20/0568 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). 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) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific 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

John J. Reilly, Chief SPR20/0568 · Page 2 April 2, 2020 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). The Department's March 201 response " In its March 20111 response the Department, through its legal counsel Attorney Janelle M. Austin of K.P. Law, P.C., provided a fee estimate of $50.00 and states that the "[r]esponsive records that are subject to mandatory disclosure under the Public Records Law will be provided upon payment of any applicable fees ... Where permitted by law, ... records or material ... may be withheld or redacted under any of the exemptions to the Public Records Law, other applicable provisions of law ... " Fees-Municipalities If there are any fees associated with a response a written, good faith estimate must be · provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10( d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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, § lO(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 how 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). Waiver off ees In her petition for appeal, Ms. Amaral requested that the fee be waived. Please be advised the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request. Under the Public Records Law, the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that

John J. Reilly, Chief SPR20/0568 Page 3 April2,2020 disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. See G. L. c. 66, § lO(d)(v); see also 950 C.M.R. 32.07(2)(k) (emphasis added). When preparing a fee estimate for the provision of the requested records the Department is advised to provide a detailed explanation to the requestor detailing why this amount of time is necessary. See G. L. c. 66, § lO(d)(iv) (requiring the amount of the fee must be reasonable). The Department must also provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fee assessed in its March 20th estimate is consistent with G. L. c. 66, § 10(d ). 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 type of documents that Ms. Amaral is seeking. 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, provided in a manner consistent with this order, the Public Records Law and its Regulations as is practicable. 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. Murray Supervisor of Records cc: Maryan Amaral