Rich Saltzberg v. Tisbury, Town of - Police Department (SPR 20201123)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 21, 2020 SPR20/1122; SPR20/1123 Mark Saloio Chief Tisbury Police Department 32 Water Street Vineyard Haven, MA 02568 Dear Chief Saloio: I have received the petition of Rich Saltzberg of the Martha’s Vineyard Times appealing the response of the Tisbury Police Department (Department) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). Specifically, on June 15th and June 16th Mr. Saltzberg requested in part, • Any and all internal investigation reports, internal investigation notes, or other internal investigation documentation focused on [three named] officer[s] in the Department. • … any police reports that include [three named] officers as an alleged offender. 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, § 10A(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, § 10(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). 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 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

Mark Saloio SPR20/1122 Page 2 SPR20/1123 July 21, 2020 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). The Department’s June 26th Fee Estimate In its June 26th response, the Department states, in part, that “given the volume of potentially responsive records to this request … particularly since the categories of records do not have a specific time frame, it is estimated that it will cost $2,901.60 to search for and locate electronic and hard copy records.” The Department explained that search time will be charged at the hourly rate of the lowest paid person capable of searching for the responsive records in accordance with 950 C.M.R. 32.07(2)(i) which shall not exceed $25.00 per hour. Further, the Department advises that since the Town has fewer than 20,000 residents, the fee will be assessed for all work associated with this request. The Department asserted that the records are located in three locations. The Department outlines the fee estimate as follows: Human Resources Coordinator to search for and locate responsive records for three officers for 60 hours at a rate of $25 per hour, reduced from $38.18; Administrative Secretary to review responsive records for exempt materials related to three officers for 60 hours at $23.36 per hour. TOTAL: 120 hours total hours = $2,901.60 plus $50 copy fee = $2,951.60 The Department through its counsel, Joseph R. Duquette of KP Law, submitted a supplemental response on July 20th. The Department explained that, “as the requests sought the exact same information for 3 Officers of the Department, [the response] was included together for convenience.” Town counsel further explained that the records are located in three locations. The records are located in Town Hall, Police Department and basement of the Senior Center because,

Mark Saloio SPR20/1122 Page 3 SPR20/1123 July 21, 2020 “a few of the Officers were employed by the Town for long periods of time and any records that date back for an extended period of time are filed in these three locations.” The Department also asserted that redactions will “almost certainly be necessary to information that is either privileged or exempt from disclosure under the Public Records law.” Town counsel asserted that, “four hours would be spent searching for the records and that there are approximately 1,000 pages of responsive materials. The Department anticipates “an average of 4-5 minutes to review each responsive page.” Current Appeal In its appeal dated July 8th, Mr. Saltzberg objects to the 120 hour estimate and the fact that the records are located in possibly three locations. On July 21st Mr. Saltzberg submitted a supplemental response which further explained his objections, specifically, the bundling by the Department of the three different record requests and states that “the combining of the [requests] is an attempt to obfuscate the true costs … and to magnify the scale of the request…” I find the Department must explain why the stated amount of time is needed to produce the records. Specifically, it must describe why two employees are needed to search and review the records. Further, the Department must explain how much time will be needed to search and locate the records, how much time will be needed to review the records and how much time will be needed to redact the records. Upon payment of the fee, the Department is ordered to provide the records in a timely manner. Although the Department states that redactions will almost certainly be necessary, the Department must also explain whether the redactions are required by law. See G. L. c. 66, -- § 10(d)(iii) (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)); 950 C.M.R. 32.06(4)(g). It is my understanding that the Department did not file a petition with the Supervisor of Records For the reasons discussed above, I find the Department must revise its fee estimate. I encourage Mr. Salzberg and the Department to communicate further in order to facilitate producing records efficiently and affordably. Mr. Salzberg may wish to include applicable time periods or additional factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Department must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or 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 agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Department is ordered to provide Mr. Salzberg with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations

Mark Saloio SPR20/1122 Page 4 SPR20/1123 July 21, 2020 as soon 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: Rich Salzberg