Seth Kershner v. Hampshire County Sheriff's Department (SPR 20210841)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 15, 2021 SPR21/0841 Thomas Mitchell Records Access Director Hampshire Sheriff’s Office 205 Rocky Hill Road Northampton, MA 01061 . Dear Mr. Mitchell: I have received the petition of Seth Kershner appealing the response of the Hampshire Sheriff’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 24, 2020, Mr. Kershner requested “copies of use of force reports for each time chemical agents were used by facility staff from January 11, 2019, to the date of this request.” The Office provided a response on January 14, 2021, which included a fee estimate. Unsatisfied with the Office’s response, Mr. Kershner petitioned this office and SPR21/0841 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 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). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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

Thomas Mitchell SPR21/0841 Page 2 April 15, 2021 Fee estimate - Agencies An agency 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). Agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii). Where appropriate, agencies 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. 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)(ii); 950 C.M.R. 32.06(4). The January 14th response In its January 14, 2021 response, the Office provided a fee estimate stating the “preliminary fee for this request is the sum of Three Hundred Seventy-Five Dollars ($375.00), calculated by the time estimate for the lowest paid person that is qualified to comply with the request: 1 hours at $25 per hour, in addition to the initial 4 hours for a total of 20 hours. A fee has not been assessed on the first 4 hours of work required to comply with the request.” Mr. Kershner appealed that “under G. L. c. 66, § 10(b), an RAO may not charge a fee unless they responded to the request within 10 business days. Mr. Kershner stated “Mr. Mitchell failed to respond within 10 business days, I am using the appeals process to bring this to the attention of your staff and to ask that Hampshire County Sheriff fulfill this request at no charge.” G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where Mr. Kershner submitted a public records request on December 24, 2020, and the Office provided a response on January 14, 2021, I find it is unclear whether the Office complied with G. L. c. 66, § 10(e). Specifically, the Office must demonstrate whether it provided a response to Mr. Kershner’s request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request.

Thomas Mitchell SPR21/0841 Page 3 April 15, 2021 Conclusion Accordingly, the Office is ordered to provide Mr. Kershner with a response to the request, 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: Seth Kershner