Amie M. Bonsaint v. Lowell, City of - Law Department (SPR 20202597)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 12, 2021 SPR20/2597 Celine Gettings City of Lowell 375 Merrimack Street, 3rd Floor 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 Appeals This request has been the subject of previous appeals. See SPR20/2139 Determination of the Supervisor of Records (November 19, 2020) and SPR20/2444 Determination of the Supervisor of Records (December 22, 2020). In my December 22nd determination, I indicated that the basis of Ms. Bonsaint’s appeal was unclear. Accordingly, Ms. Bonsaint was advised that if she wishes to appeal the City’s December 9th response, she should clarify the portions of the City’s fee estimate she is appealing. In an email correspondence dated December 28, 2020, Ms. Bonsaint clarified her request and this appeal, SPR20/2597, 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 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

Celine Gettings SPR20/2597 Page 2 January 12, 2021 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. 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. Current appeal In her December 28, 2020 email correspondence, Ms. Bonsaint states the following: I will briefly summarize a timeline of correspondence for you so you can better understand my refusal to pay the fee, which was the basis of my last message and is in accordance with M.G.L 66 § 10. 9/14/20- I submitted a public records request to the city of Lowell/ Lowell PD requesting “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.” 10/02/2020- Lowell finally acknowledged and responded to my request. Pursuant to M.G.L. 66 § 10 (e) the city was supposed to respond within 10 days or they are not allowed to charge fees for the request. In this response Lowell refused to give me any of the records requested, and I appealed. 11/04/20- The appeal was acknowledge by the SOS office, titled SPR20/2139 and assigned to Lauren Foley. 11/23/30- Stacie Moeser from city of Lowell/ Lowell PD reached out to have me modify the request pursuant to the determination of my appeal. 12/3/20- I responded by limiting my request timeframe from 9/11/15-9/11/20 to just 9/11/19-9/11/20 12/9/20- Ms. Moeser on behalf of the city of Lowell/ Lowell PD sent me an estimate of fees. My issue here is since the original 9/14 request was not answered in the 10 day time frame as required by statute, I should not be charged any fees for the requested documents. Please let me know if you need copies of any of the requests/emails/determinations. . . . It appears Ms. Bonsaint’s concern was addressed in my December 22nd determination. In the previous determination, I referenced Ms. Bonsaint’s previous petition, and I found as

Celine Gettings SPR20/2597 Page 3 January 12, 2021 follows: 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). (Emphasis added). Conclusion Where I found that the City complied with G. L. c. 66, § 10(e), and given that no further violation of G. L. c. 66, § 10 has been asserted by Ms. Bonsaint in her clarification, I will consider this administrative appeal closed. Ms. Bonsaint may appeal, the City’s December 9th fee estimate within 90 days. Sincerely, Rebecca S. Murray Supervisor of Records cc: Amie M. Bonsaint