Matthew Rocheleau v. Holden, Town of - Police Department (SPR 20201410)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 31, 2020 SPR20/1410 Timothy J. Sherblom Chief of Police Town of Holden Public Safety Building 1370 Main Street Holden, MA 01520 Dear Chief Sherblom: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Town of Holden (Town) to his request for public records. G. L. c. 66, §10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Rocheleau requested: • “Any materials that outline internal policies, procedures, protocols, standards, guidelines, general orders, directives, rules and regulations for the police department, including, but not limited to, any/all use of force policies, employee policies and procedures set by human resources departments and training manuals and materials. • The most current version of all collective bargaining unit/union contracts with the police department • Any/all logs/lists of internal investigation cases of police department employees from Jan. 1, 2010 through present, including but not limited to pending cases. Please include the current disposition of each case, as well as any final disciplinary action linked to complaint • Any/all documentation describing the operation of all existing department early- warning/intervention program(s) • The most current version of any/all organization charts, rosters, and any/all employee directories for the department, including any/all employee contact information and badge numbers. • The most current version of any documents that show the demographics (racial, ethnic, gender, and age) of each of the department's employees • Any/all records that show the total of the number of overtime hours worked department- wide in each of the shift/assignment names/codes/classifications the department uses in its payroll system for calendar year 2019 • A list/master list showing the names of all of the internal forms and publications of the police department that are intended to be for and/or filled out by sworn law enforcement 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

Timothy J. Sherblom SPR20/1410 Page 2 August 31, 2020 employees of the department, excluding any forms/publications used broadly for all city employees and any forms/publications only used for human resources purposes (such as tax withholding forms or worker's comp forms). If there is no list available, a copy of each blank form and the cover/title page of each publication will suffice. • The police department's three most recent annual reports. The most-detailed versions of line-item budgets for the police department for the three most-recent 12-month periods available (i.e. budgets on either a fiscal year or calendar year basis, however the records are normally recorded).” Unsatisfied with the response, Mr. Rocheleau appealed and SPR20/1410 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding is based…”); 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). Fees -Municipalities If there are any fees associated with a response a written, good faith estimate must be · provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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) 2 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

Timothy J. Sherblom SPR20/1410 Page 3 August 31, 2020 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 July 2nd Fee Estimate In its July 2nd response, the Department, through its counsel D.M. Moschos of Mirik O’Connell, states that, “… the Town estimates that personnel have expended 10 hours responding to this request. The Massachusetts Public Records law allows the Town to assess a fee of $25/hour. The Town is basing its estimate on [10] hours at $25.00 per hour for a total cost of $250.00.” Current Appeal In his appeal petition dated August 18th, Mr. Rocheleau asserted, “… the response does not provide any explanation for why fees are being assessed and how the town came up with the estimates of 10 hours and $250.” The Department's fee estimate has not explained why the indicated amount of time is necessary for producing the requested records. The Department's fee estimate lacks confirmation that the rates for search and segregation is of the lowest paid employee who is capable of performing the task(s). Further, the Department has not provided sufficient explanation to explain why 10 hours of search time is necessary to comply with the records request and is in conformity with G. L. c. 66, §10(d). Specifically, the Department must clarify what tasks are necessary to provide the records. Additionally, if the Department is assessing time for the segregation and redaction of records, the Department must provide information about whether the responsive records contain information that that is required by law to be segregated or redacted, as well as the applicable statutes, if any. For the reasons discussed above, I find the Department must revise its fee estimate. I encourage Mr. Rocheleau and the Department to communicate further in order to facilitate producing records efficiently and affordably. Mr. Rocheleau may wish to include applicable time periods or additional factors. 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).

Timothy J. Sherblom SPR20/1410 Page 4 August 31, 2020 Conclusion Accordingly, the Department is ordered to provide Mr. Rocheleau with a revised fee estimate, 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: Matthew Rocheleau