Kevin J. Goscila v. Dracut, Town of (SPR 20201859)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 7, 2020 SPR20/1859 David J. Chartrand Deputy Chief of Police Dracut Police Department 110 Loon Hill Road Dracut, MA 01826 Dear Chief Chartrand: I have received your petition on behalf of the Dracut Police Department (Department) requesting an extension of time to produce records, as well as permission for a waiver of statutory limits on fees that may be assessed in responding to a request. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). Specifically, on September 25, 2020, Kevin J. Goscila requested “[a]ll police reports regarding Civilian Complaints for Police Officers between the dates of January 1, 2016 and September 11, 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. 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 David J. Chartrand SPR20/1859 Page 2 October 7, 2020 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 request for public records. 950 C.M.R. 36.06(4)(b). In its September 30, 2020, petition, the Department indicates it requires an extension of time to produce the requested records. The Department states the records must be segregated, reviewed, and redacted “…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) and or attorney/client privilege.” The Department estimates it will take seven hours to respond to the request. The Department explains “[t]he requested records are not accessible in electronic form. They are stored in binders. The records must be removed and copied in preparation for review and redaction. Once redacted the records will be scanned to a thumb drive for delivery to you. The original records will then have to be restored to their original location.” 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. G. L. c. 66, § 10(c)(i)-(v); see also G. L. c. 66, § 10(b)(vi) I hereby grant the ----- Department an extension of 5 business days beyond the time allowed in G. L. c. 66, § 10(b)(vi) (a municipality may provide a timeframe not to exceed 25 business days to produce responsive records). Please note the time may begin to run once the Department receives payment. G. L. c. 66, § 10(c). 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 required 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).

Chief David J. Chartrand SPR20/1859 Page 3 October 7, 2020 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. 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 30th petition, the Department requests to asses a fee associated in responding to the request. The Department includes an itemized fee estimate: “1. Segregation, review and redaction in accordance with law: 4 hours at $74 = $296… 2. Copying/ Scanning/ Copying/ Returning the Records to Original Location: These tasks

Chief David J. Chartrand SPR20/1859 Page 4 October 7, 2020 can be performed by the administrative secretary at an hourly wage of $23 .85, 3 hours at $23.85 = $71.55…” The Department explains segregation, review, and redaction “…will have to be completed by the Deputy Chief. The cases identified range around the hundred page each mark. I am 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. There is no staff member capable of performing these functions who is paid less than $25 per hour. The Department further explains “[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) and or attorney/client privilege.” The Department indicates “the first two hours of work for the administrative secretary will not be included in the actual request for fees.” The Department provides “[t]he total cost will be: 4 hours at $74 = $296 1 hour at $23.84 = $23.84 Total cost = $3 19.84” 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, or to charge a fee in excess of $25 per hour. G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, I find the Department has established good cause for a time extension of 5 business days as described above. The 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. However, the fee shall not be more than $25 per hour. Please note, Mr. Goscila 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: Kevin J. Goscila