Dusty Christensen v. Amherst, Town of - Police Department (SPR 20202615)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 7, 2021 SPR20/2615 Captain Ronald A. Young Amherst Police Department 111 Main Street Amherst, MA 01002 Dear Captain Young: I have received your petition on behalf of the Amherst Police Department (Department) seeking permission to charge for time spent segregating or redacting responsive records as well as permission for a waiver of statutory limits on fees that may be assessed in responding to a request. G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Department furnished a copy of their petition to the requestor. Id. On December 16, 2020, Dusty Christensen requested “the internal affairs report, and any other accompanying documentation, for all cases in the Amherst Police Department’s internal affairs log.” Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from an agency to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the agency to comply with the request. G. L. c. 66, § 10(d)(iv). 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 an agency's petition to allow the agency to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public 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 the request is not for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the agency to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess 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

Capt. Ronald A. Young SPR20/2615 Page 2 January 7, 2021 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 December 16, 2020 petition to this office, you state the Department seeks to “1. Assess a fee to preliminarily segregate; and redact documents 2. Assess a fee greater than $25.00 per hour…The fee being requested in the Department’s response is an hourly rate or $30.04 per hour.” The Department explains “[t]his is based on the lowest hourly rate of our Record’s Clerk. This, however, will not be a segregation or redaction process that will be within the scope of matters handled by a Record’s Clerk. The time required and the sensitivity of the documents that may be contained within those files will necessitate that it be completed by a command officer as assigned by the Chief of Police.” The Department “recognizes that there are portions of these files that are certainly public records. Many of these files, however, contain information about illnesses, family issues, domestic concerns and information falling under the protection of Massachusetts and Federal Law, as well as record protected as C.O.R.I, much of which must be redacted and kept privately…A preliminary review or such a broad request indicates that there are several cases that are quite complex and involve family members, medical references and

Capt. Ronald A. Young SPR20/2615 Page 3 January 7, 2021 records related to the Court, much or all of which would fall under the exemptions outlined in the response to Mr. Christensen.” The Department posits that “[t]his is a large undertaking in which there is little room for error: a release of items that are not public records could impact reputation and privacy, and in many cases may be a violation of the law.” Please be aware, the Public Records Law has recently been updated to prohibit the application of Exemption (c) to law enforcement misconduct investigation records. The current text of Exemption (c) is as follows: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. § 7(26)(c). GG.i vLe. nc. t4h,e public interest served by limiting the cost of public access to the requested records, permission to charge for time spent segregating or redacting responsive records at a rate of $30.04 cannot be granted. Conclusion The Department may not assess a fee for the time spent segregating and redacting responsive records. Further the Department may not charge for fees in excess of $25 per hour for the provision of the requested records. Please note, this does not preclude the Department from charging for segregation and redaction that is required by law. When preparing a fee estimate for the provision of the requested records the Department is advised to provide a detailed explanation to the requestor detailing why the amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Department must provide a response to Mr. Christensen within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Christensen may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Dusty Christensen