Beryl Lipton v. Salem, City of - Police Department (SPR 20201323)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 13, 2020 SPR20/1323 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 29, 2020, Beryl Lipton, on behalf of MuckRock News, requested five categories of records: 1. The Salem Police Department’s policies related to uses of force. 2. The Salem Police Department’s instructions for reporting use of force. 3. The Salem Police Department’s forms used in reporting use of force. 4. The Salem Police Department’s use of force data from January 1, 2019 through July 31, 2020. 5. The Salem Police Department’s discharge report data from January 1, 2019 through July 31, 2020. 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). 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 SPR20/1323 Page 2 August 13, 2020 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. 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 6, 2020, the Department requests “…approval to assess fees for costs associated with responding to a public records request submitted by Beryl Lipton on July 29, 2020.” The Department provides “[g]iven the limited number of responsive documents

Capt. Frederick M. Ryan SPR20/1323 Page 3 August 13, 2020 for items #1 through #3 and #5 above, the Department will be able to respond to these items with approximately two hours of labor and will not seek fees for those items. However, with respect to #4, the Department conducted a search of these reports and there are over 154 of them.” 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 use of force reports involve highly sensitive matters. These matters are specifically exempt pursuant to G.L. c.4, s 7, cl 26 (c), (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 further explains “[s]ince there are over 154 reports, 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.” The Department provides an estimate of $641 “based upon the fact that our Department will be required to review each of the 154 reports.” The Department estimates “it will expend an average of 10 minutes to review each report…(1,540 minutes/60 minutes equals 25.66 hours). The standard two hours required is being used on the other four requests, so the total remains 25.66 hours at a rate of $25/hour, which equals $641.” In Ms. Lipton’s request, she states “[t]his request is being made by a reporter as part of a journalistic investigation. It is being submitted as part of a project to better understand uses of police force nationwide, which has been of public interest for many years and which is of particular interest to large new swaths of the public following the widely-seen death of George Floyd and the First Amendment-protected demonstrations and public discussion that have followed. There is no commercial interest in the submission of this request or the release of these records.” Given the public interest served by limiting the cost of public access to the requested records, the Department has not met its burden to explain that the fee represents an actual and good faith representation by the municipality to comply with the request. See G. L. c. 66, § 10(d)(iv). Though the Department has shown that the request could not be prudently completed without redaction or segregation, the Department has not shown the fee is necessary; reasonable; or that the fee is not designed to limit, deter or prevent access to the requested records. Id. Therefore, permission to charge for time spent segregating or redacting responsive records cannot be granted. However, this does not preclude the Department from charging for segregation and redaction that is required by law. Conclusion In light of the above, I find the Department has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Please note, however, this does not preclude the Department from charging for segregation and redaction that is required by law.

Capt. Frederick M. Ryan SPR20/1323 Page 4 August 13, 2020 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 report, as well as the amount of time allocated towards each task. The Department must provide a response to Ms. Lipton within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Lipton may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Beryl Lipton