Sarah W v. Wellesley, Town of - Police Department (SPR 20200732)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 6, 2020 SPR20/0732 Alexandra B. Rubin, Esq. Miyares and Harrington LLP 40 Grove Street, Suite 190 Wellesley, MA 02482 Dear Attorney Rubin: I have received your petition on behalf of the Town of Wellesley Police Department (Department) seeking to charge $25.00 per hour in responding to a request made by Sarah W., as well as an extension of time to furnish copies of a requested record, or any portion thereof. G. L. c. 66, § 10(c), (d)(iv). As required by law, the Department furnished a copy of its petition to the requestor. Id. On May 22, 2020, Sarah W. requested, “[a]ny police reports, correspondence, and criminal complaints relating to [an identified individual] that were made or received by the Wellesley Police Department from January 2019 to the present.” Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from an agency to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the agency to comply with the request. G. L. c. 66, § 10(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve an agency's petition to allow the agency to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that the request is not for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the agency to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of 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

Attorney Alexandra Rubin SPR20/0732 Page 2 May 6, 2020 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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 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 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, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06( 4)(g). Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure.

Attorney Alexandra Rubin SPR20/0732 Page 3 May 6, 2020 G. L. c. 66, § 10(c). Current Petition In your petition to this office dated May 29, 2020 you state, “I am writing to petition for the authority to charge fees for segregation and redaction of records pursuant to 950 CMR 32.06(4)(g) and (h). As described below, the Wellesley Police Department estimates that this review will take approximately 23.5 hours to complete. The total cost of responding to this request is estimated to be $537.50. Further, the Wellesley Police Department seeks permission of the Supervisor for additional time to respond to this request.” You note, “[t]he Wellesley Police Department is seeking approval to charge $25 per hour to segregate and redact records that are not otherwise required to be redacted by law, pursuant to 950 CMR 32.06(4)(g) and (h).” The May 29th petition expressed, “[i]t is likely that the Wellesley Police Department may withhold many of these records, in full or in part, because they are subject to one or more of the exemptions to the Public Records Law. Notably, portions of the requested records may be protected under Exemption (a), which applies to records that are specifically or by necessary implication exempted from disclosure by statute. In this case, some of the records may contain information protected from release under the Criminal Offender Record Information Act (CORI), G.L. c. 6, § 167 et. seq. Additionally, even if a record does not fall under the protections of CORI, it could contain information protected from release under one of the other exemptions to the Public Records Law.” You cite Exemption (c) claiming, “this exemption protects materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy. It is limited to ‘intimate details of a highly personal nature.’ Attorney General v Assistant Commissioner of the Real Property Department of Boston, 380 Mass. 623, 625 (1980). Unless there is a paramount public interest in disclosure, portions of records containing these intimate details are protected from release. Attorney General v Collector of Lynn, 377 Mass. 151, 156 (1979). These records will have to be reviewed to ensure that the privacy of any named individuals that may be included in the records are protected.” You cite Exemption (f) claiming, “this exemption allows for 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’ G.L. c. 4, § 7(26)(f). This exemption also allows for the redaction of witness statements, which, if released, could create a grave risk of directly or indirectly identifying a private citizen who volunteers as a witness. The records will have to be reviewed to ensure compliance with this exemption.” You further write, “[t]he Wellesley Police Department frequently seeks legal advice from Town Counsel. These records must be reviewed to ensure that attorney-client confidentiality

Attorney Alexandra Rubin SPR20/0732 Page 4 May 6, 2020 remains protected from release…a review of the requested documents is the only way for the Wellesley Police Department to make this determination, and then make appropriate redactions.” The May 29th petition expressed, “Ms. Cheryl Carlson, a Wellesley Police Department employee, has familiarity with these records. She estimates that it will take her approximately 3 minutes, on average, to review and redact each responsive record…At 3 minutes per record, it will take approximately 23.5 hours to complete this review. Because the Town of Wellesley’s population is more than 20,000 individuals, it cannot assess a fee for the first two hours of time. Therefore, the total cost of responding to this request is therefore estimated to be $537.50.” You contend, “[t]his fee is significantly less than the actual cost of producing the records (accounting for attorney review time) and is therefore reasonable. Moreover, the fee is not intended to limit, deter, or prevent access to the records.” With respect to an extension of time you state, “[c]urrently, the employees of the department are extremely busy due to the COVID-19 pandemic and cannot devote this amount of hours within the regular time to respond to the request. Additionally, to the extent that the responsive records require the segregation and review of archived emails, the Town’s IT department will need to search for and produce the emails to the Wellesley Police Department. The IT department sits within Wellesley Town Hall, which is currently operating on a staggered schedule for Town Hall-employees because of the pandemic. Since it will take additional time for the Wellesley Police Department to receive these emails from the IT department, it will require additional time to review and redact them. Therefore, the Wellesley Police Department requests an additional 20 business days to respond. Providing the Department with 20 additional business days to respond will not chill public transparency. “ Conclusion In light of the Department's petition, I find the Department has met its burden to explain how the response to the request cannot not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the Department may assess a charge for the segregation and redaction of such exempt material. Based on the scope of redaction required, the capacity of the Department to produce the request without the extension, and the efforts undertaken by the Department in fulfilling the request, the Department has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the Department an extension of 20 business days to furnish copies of records responsive to the request. See G. L. c. 66, § 10(c). Further, this office encourages Sara W. and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Any fee estimate by the Department

Attorney Alexandra Rubin SPR20/0732 Page 5 May 6, 2020 must be in compliance with this determination, the Public Records Law, and its Access Regulations. Please note, the requestor has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d)(iv)(4), 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Sarah W. Marie Cleary