MuckRock News v. Dracut, Town of (SPR 20202302)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 30, 2020 SPR20/2302 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) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor. In a letter dated August 17, 2020, MuckRock News requested “... any and all records relating to internal affairs complaints against the Department between January 1, 2005-August 17, 2020.” Petitions 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). 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) 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 Chartrand SPR20/2302 Page 2 November 30, 2020 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). Current Petition In your November 19th petition, you state “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 an hour. The only other option would be to have Town Counsel process the request which would result in a higher cost. “ You posit “[t]he segregation, review and redaction are necessary functions that have to be completed in order to determine and identify information that fall within the statutory exemptions to the Public Records Law G.L. c. 4 section 7(26). These exemptions include; (a) Specifically or by necessary implication exempted from disclosure by statute; and attorney/client privilege.” You further explain “[t]here are 27 investigations that will have to be reviewed and

Chief David Chartrand SPR20/2302 Page 3 November 30, 2020 redacted. I have estimated that 21 of the cases will take approximately one hour each to review and redact. There are 6 cases that will take in excess of 4 hours to review and redact. The estimate of 36 hours is a very conservative estimate and I anticipate it will actually require additional time. Without completing the actual process itself it is impossible to pinpoint a specific number. These redactions will include but are not limited to; names of cooperating witnesses, juveniles, privileged identifying information such as dates of birth, social security numbers, medical information, and any other materials or data relating to a specifically named individual where the disclosure of information may constitute an unwarranted invasion of personal privacy.” I find the Department has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition, the Department is permitted to charge for time spent segregating and redacting the requested records. Please note, Muck Rock News 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: MuckRock News