Greta Jochem v. Northampton, City of - Police Department (SPR 20210148)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 5, 2021 SPR21/0148 Jane Lawnicki Records Supervisor Town of Northampton Police Department 29 Center Street Northampton, MA 01060 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 “[t]he [I]nternal [A]ffairs report, and any other accompanying documentation” for 11 identified Internal Affairs cases. On November 20, 2020, the Department provided a response, including a fee estimate for $139.15. Unsatisfied with the Department’s fee estimate, Ms. Jochem and Mr. Christensen petitioned the Supervisor of Records (Supervisor), and the prior appeal, SPR20/2426, was opened. Prior appeal 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 “[s]earching and refiling the 11 records requested” and half an hour per record – 5.5 hours total – for “photocopying, redacting and re-photocopying.” In my December 21, 2020 determination, I asserted, “[w]here 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 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 SPR21/0148 Page 2 February 5, 2021 7.5 hours total.” Redaction time In addition, 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 also found that the Department must demonstrate that it may permissibly charge for time spent redacting the records. See 950 C.M.R. 2.07(2)(m)(4). Although the Department indicated that it intends to redact information pursuant to Exemption (a), it has not identified the statute(s) upon which this exemption is claimed. Therefore, I also ordered the Department to clarify what information contained in the records must be redacted, and what statute requires this redaction. 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). I found that if the Department intends to charge for the printing of responsive records, the Department must explain why it is not feasible to provide records electronically. Accordingly, I ordered the Department to revise its estimate or provide further explanation of how the fee assessed in its November 20th response are consistent with G. L. c. 66, § l0(d). See SPR20/2426 Determination of the Supervisor (December 21, 2020). The Department’s January 4th and February 4th responses In its January 4, 2021 response, the Department cited Exemptions (a) – Domestic Violence records that will be withheld; Exemption (c) and Exemption (f) as a reason to withhold and/or redact the records; however, the Department was previously informed by the Supervisor that the Department cannot assess a fee for redaction of the records under Exemptions (c) and (f). Nor, did the Department explain why it was necessary to assess 7.5 hours of time to complete the tasks. As a result, Ms. Jochem and Mr. Christensen petitioned the Supervisor again, and the current appeal was opened.

Jane Lawnicki SPR21/0148 Page 3 February 5, 2021 On February 4th, you sent a memo to a Senior Attorney in the Public Records Division, asserting, “… in regards to fees I am obligated to charge for searching, redacting, photocopying and refilling of records.” You further state, “[r]edacting this information would take me the same [] amount of time, therefore, I stand by my original fee.” In camera review I find that an in camera review of the requested Internal Affairs records would facilitate a determination as to the scope of review required to locate responsive records and redact records under the Department’s exemption claims; therefore, shedding light on the reasonableness of the fee estimate. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the records and the Department’s fee estimate. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Conclusion The Department must provide this office with un-redacted copies of the responsive Internal Affairs records for in camera inspection without delay. The Department may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record.

Jane Lawnicki SPR21/0148 Page 4 February 5, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Greta Jochem, Daily Hampshire Gazette Dusty Christensen, Daily Hampshire Gazette