Dusty Christensen v. Easthampton, City of - Police Department (SPR 20211236)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 1, 2021 SPR21/1236 Chief Robert J. Aliberti Easthampton Police Department 32 Payson Avenue Easthampton, MA 01027 Dear Chief Aliberti: I have received the petition of Dusty Christensen of the Daily Hampshire Gazette appealing the response of the Easthampton Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 16, 2021, Mr. Christensen requested, “[t]he internal affairs report, and any other accompanying documentation, for all cases.” On April 6, 2021, Mr. Christensen amended the request to include the following records: “…the final investigative report — including the original complaint that generated an investigation — for all internal affairs cases contained in the EPD log.” Previous appeals This request was the subject of previous appeals. See SPR21/0143 Determination of the Supervisor of Records (February 3, 2021); SPR21/0346 Determination of the Supervisor of Records (February 26, 2021). The Department further responded on May 6, 2021. Unsatisfied with the response, Mr. Christensen petitioned this office and SPR21/1236 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) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 950 C.M.R. 32.06(3); see 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

Chief Robert J. Aliberti SPR21/1236 Page 2 June 1, 2021 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). Fees -Municipalities 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. 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) 2 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 how if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). The Department’s May 6th fee estimate In its May 6th fee estimate, the Department identified numerous documents, associated with approximately seventeen (17) Internal Affairs Investigations that it believes are responsive and provided a fee estimate of $837.50 as follows: Estimate of 1 /1/2 hours per case (1 1/2 hours x 17 cases= 25 1/2 hours); 25 1/2 hours x $25.00 per hour= $637.50; Legal review= $200.00; Total of $637.50 + $200 = $837.50. The Department stated, “[t]he Department's estimate of time to fulfill this amended Request (1.5 hours per case) is based upon the following breakdown of work and effort directly associated with the Request: • 1 ½ hour identification, searching and review per case; • ¾ hour segregating, performing necessary redactions per case; • 1/4 hour photocopying per case;”

Chief Robert J. Aliberti SPR21/1236 Page 3 June 1, 2021 In its response, the Department cited Exemption (a) and attorney-client privilege as justification to redact or withhold requested records. The Department stated it “… is entitled to be paid a fee equivalent to the hourly rate of the lowest paid employee capable of performing such work in each office ... In this instance, the lowest paid individual capable of performing such work is the … Department's Office Manager and the hourly rate for such employee exceeds $25.00, which is the maximum allowed under the law.” Based upon the above, it is unclear if the $200 for legal review is part of the ¾ hour charge. Further, the Department has not provided any explanation to explain the tasks associated with the search for records responsive to this request. For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fee assessed in its May 6th estimate is consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Department is ordered to provide Mr. Christensen a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days or as soon as is practicable. 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: Dusty Christensen