Margaret Smith v. Littleton, Town of - Police Department (SPR 20201176)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 21, 2020 SPR20/1176 Alexandra B. Rubin Miyares and Harrington LLP Littletown Police Department Town of Littletown 40 Grove Street, Suite 190 Wellesley, MA 02482 Dear Attorney Rubin: I have received your petition on behalf of the Littletown Police Department (Department) requesting an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). Specifically, on June 29, 2020, Margaret Smith of the Eagle Independent requested “demographic data of police motor vehicle stops conducted by police from Jan. 1, 2014, to June 29, 2020.” 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. 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

Alexandra B. Rubin, Esq. SPR20/1176 Page 2 July 21, 2020 G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. In its July 14, 2020 petition, the Department “requests an additional 20 business days to respond.” The Department indicates “Littleton Police Department has determined that there are approximately 7,300 potentially responsive records to the request. These records include approximately 6812 citation records and 500 pages of police log information.” The Department further states “that it will take approximately 122 hours to segregate and redact the responsive records. Currently, the employees of the department are extremely busy due to the COVID-19 pandemic and cannot devote 122 hours within the regular time to respond to the request.” The Department explains “portions of the requested records may be protected under Exemption (a)…” including CORI, and information pursuant to the Driver Privacy Protection Act. The Department also cites personal privacy under Exemption (c) for potential redactions. Further the Department explains “[t]t is possible that other statutorily enumerated exemptions to the Public Records Law may apply.” I find that in light of the need to segregate and redact the requested records, the scope of redaction required to prevent unlawful disclosure, as well as the capacity of the Department to produce the request without an extension, the Department has established good cause to permit an extension of time of 20 business days. G. L. c. 66 § 10(c)(i)-(iv). Petition to Assess Fees 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 (Supervisor) 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). 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 a municipality’s petition to allow the municipality to charge for time spent segregating or redacting 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 this request was not made for a commercial purpose.

Alexandra B. Rubin, Esq. SPR20/1176 Page 3 July 21, 2020 The second prong of the test is whether the fee represents an actual and good faith representation by the municipality 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; 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. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). 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). In its July 14th petition, the 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 Department indicates “[a]t 1 minute per record, it will take approximately 122 hours to complete this review. Therefore, the total cost of responding to this request is therefore estimated to be $3,050.00.” The Department explains “Nikki Magliozzi, a Littleton Police Department employee, has familiarity with these records. She estimates that it will take her approximately 1 minute, on average, to redact each responsive record.” The Department explains “portions of the requested records may be protected under Exemption (a)…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. To the extent that

Alexandra B. Rubin, Esq. SPR20/1176 Page 4 July 21, 2020 these records contain names and other personal identifiers, such as drivers’ license numbers, such information would need to be redacted pursuant to G.L. c.93H et. seq. Further, some of the information compiled in the citation reports stem from the Registry of Motor Vehicles’ (RMV) database. Such information is subject to the Driver Privacy Protection Act, 18 U.S.C. § 2721 et. seq., which prohibits a state motor vehicle department from disclosing ‘personal information…obtained by the department in connection with a motor vehicle report.’” The Department also cites Exemption (c) for potential redactions, explaining “[t]hese records will have to be reviewed to ensure that the privacy of any named individuals (drivers) that may be included in the citation reports and log records are protected.” Further the Department explains “[t]t is possible that other statutorily enumerated exemptions to the Public Records Law may apply.” Given these records may contain CORI, information subject to the Driver Privacy Protection Act, as well as information related to personal privacy, the Department has met its burden to explain how the request could not prudently be completed without redaction or segregation under applicable statutes. See G. L. c. 66, § 10(d)(iv). Therefore, the Department may assess a fee for the time spent to segregate and redact these requested records. This office encourages the requestor 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). Conclusion Accordingly, I find the Department has established good cause for a time extension of 20 business days as described above. Further, in light of the Department’s petition, I find the Department has met its burden to explain how the response could 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 fee for segregation and redaction. When preparing a fee estimate for the provision of the requested records, the Department is advised to provide a detailed explanation to the requestor indicating why this estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). Please note, the Supervisor does not possess the authority to permit the Department to charge for the first two hours of employee time. The Department must provide a response to Ms. Smith as soon as practicable after receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4).

Alexandra B. Rubin, Esq. SPR20/1176 Page 5 July 21, 2020 Ms. Smith 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: Margaret Smith