Amie M. Bonsaint v. Lowell, City of - Law Department (SPR 20202444)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 22, 2020 SPR20/2444 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.” Previous Appeal This request has been the subject of a previous appeal. See SPR20/2139 Determination of the Supervisor of Records (November 19, 2020). In my November 19th determination, I found the City had not met its burden in responding to the request. Further, the parties were encouraged to continue to communicate to facilitate providing records more efficiently and affordably. The City provided a response to Ms. Bonsaint on November 23, 2020, requesting and assisting Ms. Bonsaint in modifying the scope of her request. On December 3, 2020, the City indicated they had not received a response from Ms. Bonsaint. Subsequent to the City’s December 3rd email, Ms. Bonsaint modified the scope of her request to “all the use of force reports and/or defensive tactics reports filed regarding any and all police officers employed by the Lowell Police Department for the period of September 11, 2019-September 11, 2020.” The City provided a response to Ms. Bonsaint’s modified request on December 9, 2020, including a fee estimate. Unsatisfied with the City’s response, Ms. Bonsaint petitioned this office, and SPR20/2444 was opened as a result. 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. SPR20/2444 Page 2 December 22, 2020 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 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 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 City’s December 9th response In its December 9th response, the City indicates “[t]here are approximately 235 responsive reports for this period. As I previously stated, the production is estimated to require four (4) minutes per record; however, I have personally completed sample runs and this estimate is very conservative because it can take in excess of eight (8) minutes to review and prepare a single record depending on the content and length. Therefore, the total number of hours required to produce these records is at a minimum 19 hours, and you would be responsible for 17 hours beyond the two statutorily included hours. At a rate of $25/hour, the cost to you would therefore be $425, for which payment would be required in advance. See G.L. c. 66, §10.” The City explains “[i]n hopes that it will assist in your understanding of the time, labor, and legal issues involved in this process, attached please find a sample redacted use of force report. After the query is run in our system according to your parameters, each of these reports must be individually opened, redacted, and saved. As you will see, the redactions can be extensive as legally required to protect personal privacy (e.g., victim names, dates of birth, social security numbers, driver’s license numbers, addresses, telephone numbers, medical information, juvenile identification, etc.). Additionally, some reports must be withheld in full if they involve incidents of sexual assault or domestic violence. See e.g. G.L. c. 4, §§7(26)(a), (c), and (f); G.L.

Stacie Moeser, Esq. SPR20/2444 Page 3 December 22, 2020 c. 66, §10B; and G.L. c. 90, §26.” The City notes “[w]e would certainly welcome a further narrowing of the period of your request in order to provide another estimate to you.” In her appeal, Ms. Bonsaint states “…the City of Lowell did not respond within the time required by M.G.L 66 § 10 and, therefore, pursuant to subsection (e)…I am not required to submit payment for this request. I do not wish to further amend my request… I respectfully ask that my amended request be fulfilled and forwarded to me at this email address.” G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where Ms. Bonsaint submitted a modified request after December 3, 2020, and the City provided a fee estimate on December 9, 2020, I find the City complied with G. L. c. 66, § 10(e). Subsequent to the opening of this appeal, Ms. Bonsaint emailed the staff attorney assigned to the case on December 12, 2020, stating “I’m not sure if you are aware but this is part of a larger appeal. An appeal determination had already been made and my correspondence with Lowell is simply trying to figure out how to get my request.” A staff attorney of the Public Records Division contacted Ms. Bonsaint to clarify if she was appealing the City’s December 9th response, but never received clarification. Conclusion Based on the foregoing, it is unclear what the basis of Ms. Bonsaint’s appeal is, or if she is appealing the City’s December 9th response. If Ms. Bonsaint does wish to appeal the City’s December 9th response, she must clarify what portions of the City’s fee estimate she is appealing within ninety (90) days. See 950 C.M.R. 32.08(1). Please be advised all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(l)(f). Sincerely, Rebecca S. Murray Supervisor of Records cc: Amie M. Bonsaint