William J. Fortin v. Spencer, Town of - Police Department (SPR 20210805)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 6, 2021 SPR21/0805 Lieutenant Michael Befford Spencer Police Department 9 West Main Street Spencer, MA 01562 Dear Lt. Befford: I have received your petition on behalf of the Spencer Police Department (Department) requesting permission to charge for time spent segregating or redacting responsive records as well as charging in excess of the statutory fees. 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 March 24, 2021, William J. Fortin requested, “[a]ll motor vehicle crash reports for the past 10 years (2011-2020)” in a specific location. Petitions to Assess Fees - 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 ($.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 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

Lt. Michael Befford SPR21/0805 Page 2 April 6, 2021 receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Current Petition In its petition dated March 30, 2021, the Department request “…permission to charge the following fees associated with the search, segregation and conversion to PDF of the requested records.” The Department states, “[o]n 3/25/2021, we searched our internal data base and determined that 1022 Crash Reports exist for that time period. Each of these reports will need to be reviewed to see if they fall into the request by Mr. Fortin. Of those that fall into the request, they will need to be redacted, as allowed by law and converted into a single PDF file to send to the requester.” The Department explains, “[t]he requested records include a large amount crash documents that will need to be reviewed, scanned and redacted as allowed by law. The lowest paid employee who has the necessary skill to complete the search and segregation of these records is Police Lieutenant. This is due to the fact that the police chief has directly assigned the lieutenant, as sole individual, to complete as the dispatchers (administrative also) are not permitted to fill requests due to job assignments. Administrative Assistant has limited hours and is not assigned to public records requests. The Lieutenant normal hourly rate is $52.30.” Although the Department states “[e]ach of these reports will need to be reviewed to see if they fall into the request by Mr. Fortin,” it has not provided information regarding what records it intends to produce and why such records are likely to contain exempt information. Conclusion I find the Department has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Please note, however, this does not preclude the Department from charging for segregation and redaction that is required by law. Further, I find in light of the factors in G. L. c. 66, § 10(d)(iv), the Department may assess an hourly rate of $52.30 for segregation and redaction 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 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 Department must provide a response to Mr. Fortin within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Fortin may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1).

Lt. Michael Befford SPR21/0805 Page 3 April 6, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: William J. Fortin