Greta Jochem v. Northampton, City of - Police Department (SPR 20202426)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 21, 2020 SPR20/2426 Jane Lawnicki Records Supervisor City of Northampton Police Department 29 Center Street Northampton, MA 02540 Dear Ms. Lawnicki: I have received the petition of Greta Jochem and Dusty Christensen of the Daily Hampshire Gazette appealing the response of the Northampton Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Jochem and Mr. Christensen requested “the internal affairs report, and any other accompanying documentation” for 11 identified internal affairs cases. The Department responded on November 20, 2020, providing a fee estimate for the production of responsive records. Unsatisfied with the Department’s response, the requestors petitioned this office and this appeal, SPR20/2426, was opened as a result. Fee Estimates 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 fewer. 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, 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

Jane Lawnicki SPR20/2426 Page 2 December 21, 2020 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 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Department’s Fee Estimate In its November 20th fee estimate, the Department estimates that it will require 7 hours to produce responsive records, for a total cost, less two hours, of $137.50. The Department estimates it will produce approximately 33 pages of records, with an associated copying cost of $1.65, for a total cost for production of records of $139.15. Fees to search for, compile, segregate, redact or reproduce responsive records In its fee estimate, the Department estimates that it will require 2 hours for “Searching and refiling the 11 records requested” and half an hour per record—5.5 hours total—for “photocopying, redacting and re-photocopying.” Where the Department has indicated that it estimates that it will produce 33 pages of records, it is unclear how it arrived at its estimate of 7.5 hours to search for and redact these records. I find the Department must provide more detail regarding the tasks it intends to perform, and how it arrived at its estimate of 7.5 hours total. Redaction time In its estimate, the Department states that “some information will not be released pursuant to the Massachusetts Public Records Law, Exemption (a) -the Statutory Exemption. This exemption applies to records that are specifically or by necessary implication exempted from disclosure by statute. This exemption is used as a basis for withholding requested materials where the exempting statute expressly states or necessarily implies that the publics' right to inspect records under the Public Records Law is restricted.” Based on the Department’s response, I find it must demonstrate that it may permissibly charge for time spent redacting the records. See 950 CMR 32.07(2)(m)(4). Although the Department indicates that it intends to redact information pursuant to Exemption (a), it has not identified the statute(s) upon which this exemption is claimed. Therefore, the Department must clarify what information contained in the records must be redacted, and what statute requires this redaction.

Jane Lawnicki SPR20/2426 Page 3 December 21, 2020 Records format The Department indicates that it is charging for the cost for printing responsive records. In their November 16th request, Ms. Jochem and Mr. Christensen indicate that they prefer to receive records in electronic format. Under the Public Records Access Regulations, a records access officer must “to the extent feasible, provide public records to a requester in electronic format unless the record is not available in electronic form or the requester does not have the ability to receive or access the records in electronic format and if feasible, in the requester’s preferred format.” 950 C.M.R. 32.04(5)(d). If the Department intends to charge for the printing of responsive records, it must explain why it is not feasible to provide records electronically. For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fee assessed in its November 20th estimate is consistent with G. L. c. 66, § l0(d). Conclusion Accordingly, the Department is ordered to provide Ms. Jochem and Mr. Christensen with a response to this request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Greta Jochem Dusty Christensen