Amie M. Bonsaint v. Lowell, City of - Law Department (SPR 20202139)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 19, 2020 SPR20/2139 Stacie Moeser, Esq. Assistant City Solicitor City of Lowell 375 Merrimack Street, # 3 Lowell, MA 01852 Dear Attorney Moeser: I have received the petition of Amie M. Bonsaint appealing the response of the City of Lowell (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on September 14, 2020, Ms. Bonsaint requested “. . . all use of force reports and/or use of defensive tactics reports filed regarding any and all persons employed by the Lowell Police Department within the past five years; September 11, 2015- September 11, 2020.” The City responded on October 2, 2020, denying the public records request. Unsatisfied with the City’s response, Ms. Bonsaint petitioned this office and this appeal, SPR20/2139, 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. 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

Stacie Moeser, Esq. SPR20/2139 Page 2 November 19, 2020 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 City’s October 2nd response In its October 2nd response, the City states “[u]nfortunately, the City is unable to provide the records responsive to your request. Our police records system returned approximately 8,000 results for that time period. We have no capability under our system license to automatically compile and/or export the records, or to complete the redactions as required by law. The time that would be required to comply with your request would exceed the resources of the City and incur overwhelming cost for you totaling beyond fifteen thousand dollars. See G.L. c. 4, §7(26); G.L. c. 66, §10.” The City notes “[p]lease contact me with any questions or concerns, or if are able to significant narrow your request.” In her appeal, Ms. Bonsaint states “LPD refused to provide any public records and failed to cite any proper exemptions…[t]he exemption the City cites does not exist under the section they cited. This particular section of this statute does list several exemptions, however, it does not list exceeding resources as one of these exemptions. Rather, LPD cites, M.G.L.A 4 § 7(26), stating the cost to comply with the request would ‘exceed the resources of the City and incur overwhelming cost . . . totaling over fifteen thousand dollars.’” Further, Ms. Bonsaint states “[t]he response failed to give a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality pursuant to M.G.L.A. 66 § 10 (b)(v); failed to suggest a reasonable modification of the scope of the request, and also failed to assist the requestor in modifying the scope of the request in a way that would enable the agency or municipality to produce the records sought more efficiently and affordably pursuant to M.G.L.A. 66 § 10 (b)(vii); and failed to include an itemized, good faith estimate of any fees that may be charged to produce the records pursuant to M.G.L.A. 66 § 10 (b)(viii).” Despite the City’s response, the City has not met its burden in responding to the request. Further, in light of the above, this office encourages the City and Ms. Bonsaint to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(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 to produce records sought more efficiently and affordably). Please be advised, 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). Conclusion Accordingly, the City is ordered to provide a response to Ms. Bonsaint in a manner consistent with this order, the Public Records Law and its Regulations within ten business days.

Stacie Moeser, Esq. SPR20/2139 Page 3 November 19, 2020 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: Amie M. Bonsaint