Stephen Voltz v. Gloucester, City of - City Clerk (SPR 20210465)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 2, 2021 SPR21/0465 Joanne M. Senos City Clerk 9 Dale Ave. Gloucester, MA 01930 Dear Ms. Senos: On February 23, 2021, this office received your petition on behalf of the City of Gloucester (City) requesting permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10 (d)(iv). As required by law, the City furnished a copy of its petition to the requestor. G. L. c. 66, § 10(c). In this matter, on February 11, 2021, Stephen M. Voltz requested: 1. All documents relating to the $50,000 per year estimated cost of firearms training for employees and retired employees of the Gloucester Police Department mentioned by Gloucester police chief Conley at the Gloucester City Council meeting on January 12, 2021. 2. All documents relating to the budget allocated to, and/or hours worked by, any Gloucester school resource officer for each year (or partial year) from 2015 to the present. 3. All documents, including evaluations, relating to the Gloucester school resource officer program’s goals and objectives. 4. Any documents relating to any school resource officers standing operating procedures. 5. All documents relating to any on the job 1) death or 2) injury requiring overnight hospitalization, of any Gloucester police officer between January 1, 2010 and the present. 6. All documents relating to the internal investigation referenced by Gloucester. 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 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

Joanne M. Sensos SPR21/0465 Page 2 March 2, 2021 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates - Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 of Records under a petition under G. L. c. 66, § 10(d)(iv). Current Petition In a letter dated February 23, 2021, the City states it “…is filing a petition for permission to charge for time to gather, review and redact all documents and emails responsive to #6 listed in Mr. Voltz’s public records request.” The City explains, “Charles Payson, General Counsel for the City of Gloucester, has determined that the following public records exemptions may be applicable to the information requested in Item 6 of Mr. Voltz’s request:  MGL c. 4, §7, cl. 26(c) personnel and medical files or information and any other

Joanne M. Sensos SPR21/0465 Page 3 March 2, 2021 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 sub clause shall not apply to records related to a law enforcement misconduct Investigation.  MGL c. 4, §7, cl. 26(f) investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.  Attorney/client privileged information - documents which provide legal advice to City officials.” The City estimates “…that it will take approximately 16 hours to gather, review and redact all documents and emails responsive to this request at $25.00 an hour. The first two hours are free as required by the public records law, therefore, payment of $350.00 was requested prior to the work commencing.” The City notes “…this estimate is for Number 6 of Mr. Voltz’s request. Any documents responsive to the remainder of his request will be provided within the required time.” Although the City states “…the following public records exemptions may be applicable to the information requested in Item 6,” it has not provided information regarding why such records are likely to contain exempt information.” Conclusion Given the 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 cannot be granted. However, this does not preclude the City from charging for segregation and redaction that is required by law. When preparing a fee estimate for the provision of the requested records, the City is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The City must provide a response to Mr. Voltz within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Sincerely, Rebecca S. Murray Supervisor of Records cc: Stephen M. Voltz Charles Payson, Esq.