Greta Jochem v. Holyoke, City of - Police Department (SPR 20210517)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 3, 2021 SPR21/0517 Officer Caron L. Porter Holyoke Police Department 138 Appleton Street Holyoke, MA 01040-5706 Dear Officer Porter: I have received your petition on behalf of the City of Holyoke Police Department (Department) seeking an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor. Id. In a letter dated February 1, 2021, Greta Jochem of the Daily Hampshire Gazette requested, “[t]he internal affairs report, and any other accompanying documentation, for all the cases in the ‘Holyoke Police Department Professional Standards Division Complaint Log.’” Ms. Jochem expressed this “…request includes all cases in the log, which goes back to 2010, including those that the department redacted.” Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. 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

Officer Caron L. Porter SPR21/0517 Page 2 March 3, 2021 G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Petition to Assess Fees 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 (Supervisor) 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). 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 a municipality’s petition to allow the municipality to charge for time spent segregating or redacting 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 this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality 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; 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. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipality 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

Officer Caron L. Porter SPR21/0517 Page 3 March 3, 2021 ($.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 its February 24, 2021 petition, the Department requests “…additional time beyond the 25 days allotted a city to produce a record.” The Department indicates, “[t]his request encompasses a 10 year time span of paper records. These reports are not in electronic format, and need to be pulled from files, reviewed and redacted, where appropriate.” Further, “[t]hese records have limited access and can only be compiled by an Internal Affairs Officer.” With respect to fees, the Department seeks permission to charge “…$25 per hour beyond the 4 hours, that it takes to compile, review and redact these records. The compiling of these records will take numerous days, and there is only one person that has access to these records.” The Department contends “[t]here is good cause to grant this single extension based upon the following factors: 1. The need to search for, collect, segregate or examine records; 2. The scope of redaction required to prevent unlawful disclosure; 3. The capacity or the normal business hours of operation of the agency to produce the request without the extension.” 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 Department from charging for segregation and redaction that is required by law. With respect to the time petition, I find the Department has established good cause to

Officer Caron L. Porter SPR21/0517 Page 4 March 3, 2021 permit an extension of time. See G.L. c. 66, § 10(c)(i)-(iv). I hereby grant the Department an extension of 30 business days to furnish copies of records responsive to Ms. Jochem’s request. See G. L. c. 66, § 10(c). To the extent possible, the Department must provide responsive records on a rolling basis. Sincerely, Rebecca S. Murray Supervisor of Records cc: Greta Jochem