Stephen Voltz v. Gloucester, City of - City Clerk (SPR 20210557)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 22, 2021 SPR21/0557 Joanne M. Senos City Clerk City of Gloucester 9 Dale Avenue Gloucester, MA 01930 Dear Ms. Senos: I have received the petition of Stephen Voltz appealing the response of the City of Gloucester (City) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On February 11, 2021, Mr. Voltz requested the following records: “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 …at the Gloucester City Council meeting on January 12, 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 Mayor … on September 13, 2016 that Effective immediately, today September 13, 2016, I have notified Gloucester Police Chief … that he has been placed on paid administrative leave until further notice and upon completion of an internal investigation.” The City responded on February 17, 2021 with a fee estimate. Unsatisfied with the response, Mr. Voltz petitioned this office and SPR21/0557 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 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. Senos SPR21/0557 Page 2 March 22, 2021 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 establishing the applicability of an exemption). 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). The City’s February 17th Fee Estimate Response In its February 17th response, the City states, “… it will take approximately 16 hours to gather, review and redact all 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 will need to be remitted prior to the work commencing ... this estimate is for Number 6 of your request. Any documents responsive to the remainder of your request will be provided within the required time.” The City cited Exemptions (c), (f) and attorney-client privilege as applicable to the information requested in Item 6 of Mr. Voltz’s request. The City's fee estimate has not explained why the indicated amount of time is necessary for producing the requested records. The City has not provided sufficient explanation to explain why 16 hours of search time is necessary to comply with the records request. The City must clarify how

Joanne M. Senos SPR21/0557 Page 3 March 22, 2021 much time is needed to search, how much time is needed to segregate information required by law and must explain what tasks are necessary to provide the records. For the reasons discussed above, I find the City must revise its fee estimate or provide further explanation of how the fee assessed in its February 8th estimate is consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the City is ordered to provide Mr. Voltz with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Stephen Voltz