Charles S. Nierman, Esq. v. Peabody, City of - Police Department (SPR 20201764)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 28, 2020 SPR20/1764 Captain Douglas S. Marcus Keeper of Records Peabody Police Department 6 Allen’s Lane Peabody, MA 01960 Dear Capt. Marcus: I have received your petition on behalf of the Peabody Police Department (Department) requesting an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). Please be advised, the law requires custodians to furnish a copy of any petition to the requestor. G. L. c. 66, § 10(d)(iv). In a request dated August 13, 2020, received by the Department on August 17, 2020, Attorney Nierman requested eleven categories of records pertaining to two identified officers: 1. Any awards and/or commendations that the aforementioned officers have received during their employment with the [Department]; 2. All Use of Force reports filed by either of the aforementioned officers between January 1, 2015 and the present date [August 13, 2020 request]; 3. The nature of any charges against any of the aforementioned officers in any ongoing Internal Affairs investigations; 4. The results of any completed Internal Affairs investigation involving any of the aforementioned officers; 5. Any and all complaints filed or received by civilians, co-workers and/or superiors against the aforementioned officers; 6. The results of any completed Internal Affairs investigation into such complaints, and any and all sanctions imposed against the aforementioned officers by the [Department]; 7. Copies of any written Use of Force policies of the [Department] between January 1, 2015 and the present; 8. Records of any training the aforementioned officers received on the use of force and the use of OC Spray; 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

Captain Douglas S. Marcus SPR20/1764 Page 2 September 28, 2020 9. The manufacturer and concentrations of capsaicin in the [Department’s] issue OC Spray; and 10. Records of any training the aforementioned officers received regarding the de- escalation of potential incidents. Previous Determination This request was the subject of a previous appeal. See SPR20/1540 Determination of the Supervisor of Records (September 15, 2020). In my September 15th determination, I found the Department did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. The Department was ordered to provide Attorney Nierman with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. The Department submitted their petition on September 21, 2020. Petitions for an extension of time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a

Captain Douglas S. Marcus SPR20/1764 Page 3 September 28, 2020 request for public records. 950 C.M.R. 36.06(4)(b). In its September 21st petition, the Department is “respectfully requesting the time allotted for an additional fifteen (15) business days to allow the department more time to investigate and complete the request.” The Department explains “[t]he extensive scope of this request requires research to be done to obtain all necessary records of information in particular for all use of force reports for two officers mentioned in the request and all use of force reports will then need to be redacted as described above.” The Departmen indicates “[t]here are also eight other items in this FOIA request that will take additional time to locate and identify properly for disclosure.” The Department cites Exemption (a) and (c) as a basis for potential redaction. I find that in light of the broad nature of the request; and the need to search for, segregate, and redact the requested records, the Department has established good cause to permit an extension of time of 15 business days. G. L. c. 66, § 10(c)(i)-(v); see also G. L. c. 66, § 10(b)(vi) ----- (a records access officer may identify a reasonable timeframe in which it shall produce the public records sought; provided, that for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request). 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 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 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.

Captain Douglas S. Marcus SPR20/1764 Page 4 September 28, 2020 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). In its September 21st petition, the Deparment “requesting that the requester be charged a fee for the segregation and redaction of records at the rate of $25 per hour for a total of 8 hours whereby the fair estimation for our department for this work to be done is 12 hours.” The Department explains for their Exemption (a) claim that records may include “names of defendants, dates of birth, and addresses be redacted from use of force reports (item#2) based on exemption (a), whereby specifically or by necessary implication are exempted from disclosure by statute.” In regards to Exemption (c), the Department explains “some use of force reports may identify persons with medical issues the department is requesting those names, dates of birth, and addresses be redacted from use of force reports based on exemption (c) as medical files or information to a specifically named individual may constitute an unwarranted invasion of privacy.” For Exemption (c), the Department further explains “personnel files and other information relating to a particular individual may constitute an unwarranted invasion of privacy.”

Captain Douglas S. Marcus SPR20/1764 Page 5 September 28, 2020 Given the public interest served by limiting the cost of public access to the requested records, the Department has not met its burden to charge for segregation and redaction that is not required by law. G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, I find the Department has established good cause for a time extension of 15 business days as described above. However, Department has not met its burden to explain how the response could not be prudently completed without charging a fee for redaction or segregation. Please note, this does not preclude the Department from charging for segregation and redaction that is required by law. 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). The Department must provide a response to Attorney Nierman within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Attorney Nierman may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Attorney Nierman 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). Sincerely, Rebecca S. Murray Supervisor of Records cc: Charles Scott Nierman, Esq.