Rich Saltzberg v. Tisbury, Town of - Police Department (SPR 20201124)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 22, 2020 SPR20/1124 Mark Saloio Chief of Police Tisbury Police Department 32 Water Street, P.O. Box 426 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 15, 2020, Mr. Saltzberg requested records relating to a certain internal affairs investigation. The Department responded on June 26, 2020, including a fee estimate. Unsatisfied with the Department’s response, Mr. Saltzberg petitioned this office, and SPR20/1124 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, § 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). 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 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 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 SPR20/1124 Page 2 July 22, 2020 ($.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 “given the volume of potentially responsive records to this request, it is estimated that it will cost $2,901.60.” 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 notes the records are “located in possibly 3 locations.” The Department indicates it will take the Human Resources Coordinator 60 hours “to search for and locate responsive records” at a rate of $25 per hour, reduced from $35.18. The Department further indicates it will take the Administrative Secretary 60 hours “to review responsive records for exempt materials.” The Department also notes it is anticipating copying costs will be an additional $50, bringing the total cost to $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, “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

Mark Saloio SPR20/1124 Page 3 July 22, 2020 responsive materials. The Department anticipates “an average of 4-5 minutes to review each responsive page.” In his July 7th appeal, Mr. Saltzberg states “[w]hat underpins the 120 hour estimate is simply not provided. Perplexingly, Chief Saloio describes the records as being ‘located in possibly [three] locations’ but that the department ‘will be able to produce most of the records electronically.’ These two descriptions seem to contradict each other. Given the nature of internal investigation records and the requirement they be preserved, it's difficult to believe the Tisbury Police Department doesn't keep the records centralized and readily accessible…[i]f the department's archival methods are so poor as to have spread sensitive records in cellars and file cabinets across several town offices, the public's right to access those records should not be subject to an absurd and exorbitant paywall as a result.” The Department’s fee estimate has not explained with specificity why the indicated amount of time is necessary for producing the requested records. The Department has not provided sufficient explanation to explain why 120 hours is necessary to search, segregate, and redact the records in order to comply with the records request. Specifically, it must describe why two employees are needed to search and review the records. Further, the Department must explain how much time is allotted to search for, segregate, and review the records. Finally, Department is advised that a municipality is not permitted to charge for time spent segregating records unless segregation is required by law or approved by the Supervisor of Records through a petition. See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). Whereas the Department has provided they intend to charge for redaction pursuant to attorney-client privilege, it is unclear if the Department is intending to charge for redaction that is not required by law. The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Saltzberg with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations 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 Saltzberg