Brian Donegan v. Salem, City of - Police Department (SPR 20201306)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 12, 2020 SPR20/1306 Captain Frederick M. Ryan Special Services Division Commander Salem Police Department City of Salem 95 Margin Street Salem, MA 01970 Dear Capt. Ryan: I have received your petition on behalf of the Salem Police Department (Department) requesting permission to charge for time spent segregating or redacting responsive records under G. L. 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). On July 28, 2020, Brian Donegan requested “records and materials” related to three categories of records: 1. The Salem Police Department’s policy manual or standard operating procedures 2. The Salem Police Department’s use of force policy 3. The Salem Police Department’s blank forms used for recording and reporting incidents and operations. 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 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

Capt. Frederick M. Ryan SPR20/1306 Page 2 August 12, 2020 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. 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). Current Petition In its petition dated August 4, 2020, the Department requests “…approval to assess fees for costs associated with responding to a public records request submitted by Brian Donegan on July 28, 2020.” The Department provides “[g]iven the limited number of responsive documents for items #2 through #3 above, the Department was able to respond to these items with approximately a half hour of labor and will not seek fees for those items. However, with respect to #1, the Department conducted a search of the policies and there are over 140 of them.” The

Capt. Frederick M. Ryan SPR20/1306 Page 3 August 12, 2020 Department notes “…the Department had communicated to the requestor that we would be willing to work with them to narrow the scope of their request given the large amount of potentially responsive documents by providing a Table of Contents of our policies to select from.” The Department explains “[t]he Salem Police is a law enforcement agency with various missions ranging from public safety and criminal justice to emergency preparedness. As a result, a large percentage of department emails involve highly sensitive tactical matters. These matters are specifically exempt pursuant to G.L. c.4, s 7, cl 26 (b), (f), and/or (n) and are not subject to public disclosure. Accordingly, the information must be segregated and redacted before they are produced to a third party such as the requestor.” The Department clarified in an email on August 11, 2020, that “there aren’t any emails involved, and the above should read “policies not emails.” The Department further explains “[s]ince there are over 140 policies, which our Department must review and redact, this will impose an onerous burden on us, which will have to devote limited resources to review and redact these records.” Given the policies may contain highly sensitive tactical matters exempt pursuant to G. L. c.4, § 7(26)(b), (f), and/or (n), 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. Conclusion 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). Specifically, the Department must explain why it will take ten minutes to review each policy, as well as the amount of time allocated towards each task. The Department must provide a response to Mr. Donegan within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Donegan may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Mr. Donegan 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).

Capt. Frederick M. Ryan SPR20/1306 Page 4 August 12, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Brian Donegan