Matthew Rocheleau v. Holden, Town of - Police Department (SPR 20201411)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 1, 2020 SPR20/1411 Timothy Sherblom Chief of Police Holden Police Department 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 Holden Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 22, 2020, Mr. Rocheleau requested the following categories of records: [1] Any/all reports final reports issued since Jan. 1, 2010 regarding a department employee’s use of lethal/deadly force. This would include final investigative findings as well as any recommendations for discipline or action to be taken by the department or employee. [2] Any/all reviews, memos, or audits issued by the professional standards division/bureau and/or the Chief/Commissioner’s Office regarding the use of force by department employees since Jan. 1, 2010 [3] Any/all administrative logs/lists of all instances of use of force by department employees since Jan. 1, 2010 [4] Any/all data/summary reports about field interrogation and observation/ encounter (aka “stop and frisk/search”) events since Jan. 1, 2017 [5] A list of any/all promotions and demotions of employees at police department since Jan. 1, 2017, showing the name of the employee promoted/demoted, the effective date of that change, and the change in job title. [6] A list of all people hired as police department employees since Jan. 1, 2017, showing their names, titles, and the date their employment began. [7] A list of all police department employees who departed/left the agency since Jan. 1, 2017, showing their names, titles, date they left/departed, whether they retired/resigned, were terminated/fired, or left on some other terms, and, if they were terminated/fired, the reason. [8] A list of all police department employees who were suspended/placed on 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

Chief Timothy Sherblom SPR20/1411 Page 2 September 1, 2020 involuntary leave since Jan. 1, 2017, showing their names, titles, date suspension began and ended (if it has), and reason for suspension. [9] Any/all documents related to payments made for legal settlements and judgments involving the police department, or employees from Jan. 1, 2017 through present date. This includes, but is not limited, to settlements/ agreements/arbitration made both in and out of court. The Department provided a response on July 7, 2020, indicating it did not possess certain categories of the request and providing a fee estimate for responsive records it does possess. Unsatisfied with the Department’s response, Mr. Rocheleau petitioned this office and this appeal, SRP20/1411, 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. 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. The Department’s July 7th response Requests 1 & 9 With respect to the above referenced requests, the Department states “[t]here are no documents responsive to th[ese] request[s].” Request 2 With respect to request 2, the Department states that “[t]here are no documents available that are directly responsive to this request. In connection with the Holden Police Department’s certification by the Massachusetts Police Accreditation Commission, a copy of the Department’s Use of Force Policy will be provided upon receipt of payment.”

Chief Timothy Sherblom SPR20/1411 Page 3 September 1, 2020 Request 4 With respect to request 4, the Department states that “[t]his information is not maintained by the Holden Police Department in a searchable format. The [Department] will provide a list of the field interrogation and observation/encounter events to the extent that information is available, upon receipt of payment.” Request 5 With respect to request 5, the Department indicates that “[t]here is no document responsive to this request. A list would have to be created by the Town based on a manual review of this information.” Request 6 With respect to request 6, the Department states that “[a] list of people hired by the [Department] since January 1, 2017, by name, title and date of hire will be provided upon receipt of payment.” Request 7 With respect to request 7, the Department indicates that “[a] list of all police department employees who have separated from employment with the [Department] since January 1, 2017, by name and separation date will be provided to the extent that information has been maintained by the Holden Police Department, upon receipt of payment.” Exemption claim – Requests 3 and 8 With respect to the above referenced requests the Department claims that it will redact and/or withhold portions of the records under Exemption (c). With respect to request 3, the Department indicates that the “. . . records are maintained in a retrievable, searchable format only for three (3) year periods of time. The [Department], therefore, will provide a listing of the Use of Force instances for the years 2017, 2018, 2019 and 2020 (YTD) upon receipt of payment, subject to the names of the suspects being redacted based upon the privacy exemption to the Public Records law with respect to ‘materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy’ (M.G.L. c. 4, § 7(26)(c).” With respect to request 8, the Department claims that the responsive records “. . . are not public records and are exempt from disclosure under the ‘personnel’ exemption to the Public Records Law, with respect to ‘personnel and medical files or information’ (M.G.L. c. 4, §7(26)(c)).”

Chief Timothy Sherblom SPR20/1411 Page 4 September 1, 2020 Fee estimates – municipalities 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 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 seeking permission to assess fees must be made within ten business days after receipt of a request for public records. Id. The Department’s fee estimate In its estimate the Department states that it requires full payment of its initial good faith estimate prior to complying with the request. The Department indicates that it “. . . estimates that personnel have expended 6 hours responding to this request. The Massachusetts Public Records law allows the [Department] to assess a fee of $25/hour. The [Department] is basing its estimate on hours at $25.00 per hour for a total cost of $150.00.” The Department’s fee estimate indicates that it is assessing a fee for 6 hours. However, the Department has not explained why the indicated amount of time is necessary for producing the requested records. The Department must provide additional information explaining why the estimated amount of time is required and what tasks are involved in these 6 hours. Also, it is unclear whether the 6 hours includes time to search for, compile, segregate, redact, or reproduce records as described under G. L. c. 66, § 10(d)(ii). Further, the Department’s fee estimate indicates that it is assessing a fee at a rate of $25.00 per hour. Based on this response, it is unclear whether $25.00 is the lowest paid hourly rate for the employee capable of completing the tasks necessary to produce the records. See G. L. c. 66, § 10(d)(iii). Consequently, I find the Department must clarify this estimate.

Chief Timothy Sherblom SPR20/1411 Page 5 September 1, 2020 For the reasons discussed above, I find the Department must revise its fee estimate. Please be aware, when providing a response to this request, the Supervisor has previously found that the personnel clause of Exemption (c) does not allow for a list of suspensions or terminations to be withheld. See SPR19/0845 Supervisor of Records Determination (May 13, 2019). 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) (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 agency or municipality to produce records sought more efficiently and affordably). 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