Andrew Quemere v. Northampton, City of - Police Department (SPR 20201450)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 3, 2020 SPR20/1450 Jane Lawnicki Records Supervisor Northampton Police Department 29 Center Street Northampton, MA 01060-3090 Dear Ms. Lawnicki: I have received the petition of Andrew Quemere appealing the response of the Northampton 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 August 20, 2020, Mr. Quemere requested “[a]ll lists, logs, and databases of lawsuits filed against the police department for the years 2010 to the present (if any responsive records contain information about additional years, it is not necessary to remove the extra information).” The Department responded on August 24, 2020, providing a fee estimate. Objecting to the fees, Mr. Quemere petitioned this office and this appeal, SPR20/ 1450, was opened as result. While this appeal was pending the Department provided a supplemental response on August 25, 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). 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

Jane Lawnicki SPR20/1450 Page 2 September 3, 2020 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 August 24th fee estimate In its fee estimate, the Department indicates that the “. . . reports are in paper format and would need to be searched and sorted by hand. Each report would require to be searched, sorted, copied and redacted (according to MA State Laws) and then recopied. Therefore, the estimated cost to complete is . . . 33 hours @ $18.90 (lowest paid Records Clerk) for a total of $623.70).” The Department states that producing these records “. . . would take the Records Department approximately 35 hours . . . with the first two (2) hours free.” In its August 25, 2020 supplemental response, the Department explains that “. . . [t]he records Mr. Quemere is requesting are not in the computer system and are filed in the department’s Archive Room. They cannot simply be printed and handed out. . . . This is a tedious task that will certainly take many hours to complete. [The Department] estimate[s] 2 hours per report.” The Department further explains that it “. . . will provide a full itemized invoice once [it] proceed[s] with the task and know[s] exactly how many records and the length of each record. . . [The Department] can be fairly certain that [it] would be using Exemption (c) – the privacy exemption. In the case of lawsuits against the City, privacy of the plaintiff and the defendant would need to be considered. And [the Department] could possibly use Exemption (f) – the investigatory exemption. In this case there may be current lawsuits still pending in which disclosure could compromise the investigation, if released.” The Department’s fee estimate indicates that it is assessing a fee for 35 hours. Although the Department states that “[e]ach report would require to be searched, sorted, copied and redacted . . . and then recopied[,]” I find the Department has not explained with specificity why the indicated amount of time is required to produce the responsive records. Specifically, the Department’s estimate does not make clear how many hours are being allocated to search, compile, redact and review the responsive records. Also, although the Department states that it “estimate[s] 2 hours per report[,]” it is unclear the number of pages there are in each report and how many minutes per page the Department requires to review the responsive records. The Department must clarify this estimate. Further, although the Department claims it is certain it would be redacting records pursuant to Exemptions (c) and/or (f), please note that under the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). I am not aware that the Department has submitted a petition under G. L. c. 66, § 10(d)(iv). Please note that petitions

Jane Lawnicki SPR20/1450 Page 3 September 3, 2020 seeking permission to assess fees must be made within ten business days after receipt of a request for public records. See 950 C.M.R. 32.06(4)(g). Conclusion Accordingly, the Department is ordered to provide Mr. Quemere with a revised fee estimate, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. 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: Andrew Quemere