Timothy R. Callinan v. Concord, Town of - Police Department (SPR 20200661)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 28, 2020 SPR20/0661; SPR20/0662 Chief Joseph O'Connor Concord Police Depaiiment 219 Walden Street P.O. Box 519 Concord, MA 01742 Dear Chief O'Connor: I have received the petition of Timothy R. Callinan, Esq. of Callinan Magner Law Group, LLP. appealing the response of the Concord Police Depa1iment (Department) to a request for public records. G. L. c. 66, § lOA; also 950 C.M.R. 32.08(1). Specifically, Attorney Callinan requested: • "Any and all past or current reports, investigative files, or data, in any form, concerning any and all investigations, incidents, or journal entries of the Concord Police Department referencing or regarding Trista Manchuso" • "Any and all past or current reports, investigative files, or data, in any form, concerning any and all investigations, incidents, or journal entries of the Concord Police Depaiiment referencing or regarding Jared Snapp." The Department responded on April 8, 2020 indicating that it intended to withhold responsive records, and providing a estimate for the production of other responsive records. Unsatisfied with the response, Attorney Callinan appealed and these appeals, SPR20/066 and SPR20/0662, were opened as a result. 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); 950 C.M.R. 32.06(3); also Dist. 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 Joseph O'Connor SPR20/0661, 0662 Page 2 April 28, 2020 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. Fee Estimates 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 fewer. 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 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 under a petition under G. L. c. 66, § IO(d)(iv). G. L. c. 66, § IO(d)(iii); 950 C.M.R. 32.06(4). The Department's April 81 Response " In its April gth response, the Department states that it intends to withhold responsive records pursuant to Exemption (f) of the Public Records Law, and suggests that Exemptions (a) and ( c) may also apply to responsive records. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest

Chief Joseph O'Connor SPR20/0661, 0662 Page 3 April 28, 2020 G. L. C. 4, §7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244,248 (2001); Reinstein v. Police Cornrn'r of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. In its response, the Department states that it "intends to withhold requested documents under Exemption F, Investigatory Materials. The requested records may also be subject to Exemptions A or C if they contain criminal record or otherwise personal and private information." The Department further states that "disclosing records relating to ongoing investigations would prejudice Department operations by alerting potential suspects of the activities of investigative officials." · Burden ofS pecificity Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § lO(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 exemption or exemptions upon which the withholding is based ... "); see also Globe Newspaper Co. v. Police Cornrn'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. I find that the Department has not met its burden to withhold responsive records under the exemptions described above; in particular, it has not identified which specific records it is withholding, nor has it provided specific reasons for the applicability of these exemptions as required by G. L. c.66, § lO(b )(iv). Additionally, it is not clear whether the cited exemptions require the withholding of responsive records in their entirety. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a ). The Department's Fee Estimate In its response, the Department provides a fee estimate for the production of responsive records, estimating a fee of approximately $2,500, based on an estimate of 100 hours of work to produce the records. The Department indicates that the 100 hour estimate is based on "70

Chief Joseph O'Connor SPR20/0661, 0662 Page 4 April 28, 2020 hours ... spent searching and reviewing the requested records; 10 hours ... spent compiling the requested records; and 20 hours ... spent redacting and reproducing the requested records." The Public Records Law provides that in cases where necessary to reproduce the requested records a records access officer may charge a fee to search for, compile, segregate, redact or reproduce a requested record based on the hourly rate of the lowest paid employee who is capable of performing the task. G. L. c. 66, § lO(d); see also 950 C.M.R. 32.07(2). The reasonable fee for reproduction shall not exceed the actual cost of reproducing the record. Id. Based on the Department's response, I find it unclear why 100 hours will be needed to produce the responsive records. I find the Department must provide more detail has to how it affived at the hourly estimates above. It appears from the response that the Department is charging for time spent redacting responsive records. Please note that municipalities are not permitted to charge for time spent segregating or redacting responsive records unless such redaction is required by law or approved by the Supervisor of Records. G. L. c. 66, § lO(d)(iii). I am unaware of any petition filed with this office requesting permission to charge for segregation or redaction of records related to these requests. The Department must therefore clarify how it may charge for time spent reviewing and redacting the responsive records. Additionally, the Department must indicate whether it is calculating its fee estimate using the hourly rate of the lowest-paid employee capable of performing each task. Conclusion Accordingly, the Department is ordered to provide Attorney Callinan with a response to the request in a manner consistent with this order, the Public Records Law, and its Regulations as soon as 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: Timothy R. Callinan, Esq.