Cindy King v. Townsend, Town of - Town Clerk (SPR 20211154)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 18, 2021 SPR21/1154 Kathleen M. Spofford, CMMC Town Clerk Town of Townsend 272 Main Street Townsend, MA 01469 Dear Ms. Spofford: I have received the petition of Cindy King appealing the response of the Town of Townsend (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 4, 2021, Ms. King requested “a copy of all complaints and Internal Affairs Investigations on all Townsend police officers conducted between January 1, 2015 and April 30, 2019…” The Town provided a response on May 6, 2021, which included a fee estimate. Unsatisfied with the Town’s response, Ms. King petitioned this office and SPR21/1154 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Kathleen M. Spofford, CMMC SPR21/1154 Page 2 May 18, 2021 Fee Estimate – 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 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 Town’s May 6th response In its May 6th response, the Town indicates “…each investigation will take approximately 1-4 hours to redact information from approximately 20 investigations that have been completed since 2015 at $25.00 per hour plus the cost of copies at .05 per page… [i]f you could be more specific in your request it would be take less time and the expense would be less.” The Town asked Ms. King if there is a particular investigation(s) she was looking for. The Town provided a supplemental response to this office on May 13, 2021, explaining “[t]he internal affairs files, inclusive of supporting documentation range in detail and depth. Some, which include multiple interviews, reports, etc. can be contained in files more than an inch thick… [t]hat said each requires review and redaction. By way of example, witness names and identifying information may need to be redacted, including names of minors. In addition, redactions pursuant to both prongs of the privacy exemption may also be required. Without a more specific request, the Town’s police department is required to search all of its files… [t]his process is time-consuming.” The Town indicates “[i]f Ms. King seeks information relative to specific incidents, investigations, involved officers or otherwise which limit search and review, the Town will respond in a more targeted way. In addition, if Ms. King indicates that she is looking only for the final report, without supporting documentation, we can provide that in a more expeditious manner. Further, the Town has previously provided investigation logs to Ms. King to assist her in modifying her request, should she desire.”

Kathleen M. Spofford, CMMC SPR21/1154 Page 3 May 18, 2021 In light of the Town’s responses, I encourage Ms. King and the Town to communicate in order to facilitate producing records efficiently and affordably. Ms. King may wish to narrow the parameters or include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Town must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, I will consider this administrative appeal closed. If issues remain after further communication, Ms. King may file an appeal. Sincerely, Rebecca S. Murray Supervisor of Records cc: Cindy King