Andrew McIsaac v. Pembroke, Town of - Police Department (SPR 20200598)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 7, 2020 SPR20/0598 Richard D. Wall Chief of Police Town of Pembroke Police Department 80 Center Street Pembroke, MA 02359-0535 Dear Chief Wall: I have received the petition of Andrew Mclsaac appealing the response of the Town of Pembroke Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Mclsaac requested copies of: all logs; incidents reports regarding 19C ( abuse/neglect of disabled persons), 51 A ( abuse/neglect of children, 19 A (abuse/neglect of elderly) by the Department concerning Pembroke Hospital and created between 6/10/2019 and 3/17/2020. In a March 27, 2020 response, the Department provided a fee estimate for 6 hours of time to search for records, compile records, segregate and redact information, and/or reproduce the requested records at $25.00 per hour for a total of $150.00. As a result of the Department's fee estimate, Mr. Mclsaac petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Tlte 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

Chief Richard D. Wall SPR20/0598 Page 2 April 7, 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). Fees -Municipalities If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (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 puqlic record. G. L. c. 66, § 10( d)(i). Municipalities may not assess a fee for the first (two) 2 hom;s 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 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, § lO(d)(iii); 950 C.M.R. 32.06(4). The Department's March 27, 2020 response and fee estimate On March 27th, the Department provided Mr. Mclsaac with a fee estimate totaling $150.00 for search, compilation, segregation, redaction, and reproduction of the records. The response indicated that the Town of Pembroke has a population of less than 20,000 people. Therefore, under the Public Records Law, the Department is not required to waive the cost of the first two (2) hours of work. See 950 C.M.R. 32.07(m). The Department's estimate states, "[i]n order to comply with your request, it will take approximately 6 hours of search and segregation time, based upon the time it will take to search for, compile, segregate, redact and/or reproduce the requested records." You explained that the lowest paid employee who has the necessary skill to complete the search and segregation is the Secretary to the Police Chief whose hourly rate is $26.29. The search and segregation costs have been calculated using the hourly rate of $25.00, the hourly rate allowed by the [S]upervisor." See G. L. c. 66, § lO(d)(iii).

Chief Richard D. Wall SPR20/0598 Page 3 April 7, 2020 In his petition, Mr. Mclsaac contends that the records can be compiled, segregated and redacted within 1 hour of time. The Department did not detail how many hours of the estimated 6 hours are allocated to each task. I find that the Department must provide more detail regarding the tasks and the amount of time for each of the tasks. Specifically, it is unclear how many hours were allocated to searching, compiling, segregating, redacting and reproducing the responsive records. I find that the Department must clarify the amount of time assessed for each of the tasks necessary to provide Mr. Mclsaac with the records. Mr. Mclsaac also indicates that the Department is charging a fee for segregation and redaction, but did not cite any state or federal laws or common law privileges that require segregation and redaction. He also contends that the Department has not stated that the Department sought approval from the Supervisor to assess fees for segregation and redaction of the records. Department is advised that a fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by state or federal law or common law privilege, or with approval of 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). While the Department is allowed to charge segregation and redaction fees for information that is required to be withheld under state and federal statutes or a common law privilege, the Department did not claim any law or privilege. I find the Department did not meet its burden to charge for segregation and redaction, and must clarify these fees. Burden ofs pecificity The Depaiiment indicated that the records wot1ld be segregated and redacted, but did not claim any exemptions. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 1O (b )(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden of demonstrating how the responsive records or information in the records must be redacted under an exemption or exemptions in the Public Records Law. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must provide Mr. Mclsaac with any non-exempt, segregable portions of the public records. G. L. c. 66, § IO(a). Conclusion Accordingly, the Department is ordered to provide Mr. Mclsaac with a response to the request, 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.

Chief Richard D. Wall SPR20/0598 Page 4 April 7, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Mclsaac