Records Requestor v. Dracut, Town of (SPR 20201801)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 7, 2020 SPR20/1801 Deputy Chief David J. Chartrand Deputy Chief of Police Dracut Police Department 110 Loon Hill Road Dracut, MA 01826 Dear Deputy Chief Chartrand: I have received the petition from MuckRock News appealing the response of the Dracut Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. On August 17, 2020, Muck Rock News requested, “… any and all records relating to internal affairs complaints against the Department between January 1, 2005 – August 17, 2020, this information shall include but not limited to the following: 1. Police Officer's Full Legal Name (including Given/First Name and Last/Surname); 2. Rank; 3. Badge Number; 4. Date of IAD complaint; 5. IAD Complaint # (sometimes referred to as the Complaint Control Form #); 6. IAD Case # (this is the number assigned to the IAD investigation file); 7. Nature of Charges against the Officer; 8. Results of the IAD investigation; and 9. IAD Complaint Disposition Date.” Previous appeal This request was the subject of a previous appeal. See SPR20/1702 Determination of the Supervisor of Records (September 22, 2020). In my September 22nd determination, I ordered the Department to provide a subsequent response. Unsatisfied with the Department’s response, MuckRock News appealed, and SP20/1801 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 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

Deputy Chief David J. Chartrand SPR20/1801 Page 2 October 7, 2020 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 reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per how 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 September 23, 2020 Fee Estimate In its September 23rd response, the Department included an itemized fee estimate as follows:

Deputy Chief David J. Chartrand SPR20/1801 Page 3 October 7, 2020 1. Segregation, review and redaction in accordance with law 36 hours at $25 per hour = $900 [and] 2. Copying and Scanning 6 hours at $23.85 = $143.10 The Department explains in part that the estimate includes “[t]he segregation, review, and redaction and necessary functions that have to be completed by the Deputy Chief. The identified cases are twenty seven (27) that fall within the realm of the request. They range in page length where some are over 100 pages.” The Department further indicates that “the only staff member who has received the proper training in terms of Internal Investigations and the Public Records Law to complete the required work [is the Deputy Chief.] There is no staff member capable of performing these functions who is paid less than $25 per hour.” The Department asserts “[t]he segregation, review and redaction are necessary functions that have to be completed in order to determine and identify information that falls within the statutory exemptions to the Public Records Law G.L. c. 4 section 7(26). The exemptions include: (a) and … attorney/client privilege.” The Department indicates that the first two hours of work will not be included in the actual request for fees.” The Department provides “[t]he total cost will be: Segregation, review and redaction = $900.00 Copying and Scanning = $143.10 The total cost = $1, 043.10.” The Department has not provided sufficient explanation to explain why 36 hours of segregation, review and redaction time is required. The Department must break down how much time is needed to search for records and how much time is needed to compile and review the records and how much time will be needed to segregate and/or redact. Additionally, the Department must indicate which tasks are required to complete its search and segregation of the records. Conclusion Accordingly, the Department is ordered to provide MuckRock News with a response to the request, 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.

Deputy Chief David J. Chartrand SPR20/1801 Page 4 October 7, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: MuckRock News