Arielle Sharma v. Southbridge, Town of - Police Department (SPR 20211357)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 7, 2021 SPR21/1357 Officer Gerald Arvelo Southbridge Police Department One Mechanic Street Southbridge, MA 01550 Dear Officer Arvelo: I have received your petition on behalf of the Southbridge Police Department (Department) requesting an extension of time to produce records, a waiver of statutory limits on fees that may be assessed in responding to a public records request and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). In a request received by the Department on May 27, 2021, Attorney Arielle Sharma requested: 1. All complaints, outcomes of internal investigations, excessive force reviews and corrective action taken against any officer for all currently employed police officers. 2. List of all stops and searches (sometimes known as Field Interrogation Reports or Observations) from the dates of January 1, 2017 until January 1, 2021 including but not limited to name of the officers involved in the stop, location of stop, race of person stopped, gender of person stopped, age of person stopped, outcome of the stop (such as arrest, ticket, none) and any other information available on the stop. Petitions for an extension of time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; 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

Officer Gerald Arvelo SPR21/1357 Page 2 June 7, 2021 (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). In the Department’s petition dated May 27th, you indicate that the request would “require a search and review of approximately 4 years of department logs/records and the redaction of any sensitive information that would be exempt from public record.” As an example of the scope of this request you indicate that “in 2020 the Southbridge Police Department had a total of 36,790 calls for service.” The Department contends that “the requested personnel records that include internal investigations, excessive force reviews and corrective action against officers are restricted from rank-and-file members and are only accessible for the ranks of Lieutenant or higher… The Southbridge Police Administration consists of 3 officers ranked Lieutenant and above and are the only employees who have the ability to provide the requested records and are also responsible for overseeing the entire Southbridge Police Department.” Given this, you indicate that this request would “place an undue burden on the Southbridge Police Administration.” I find that the Department has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(ii). The Department is granted an extension of 30 business days. Please note the time may begin to run once the Department receives payment. G. L. c. 66, § 10(c). Petition to Assess Fees 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 (Supervisor) 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). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv).

Officer Gerald Arvelo SPR21/1357 Page 3 June 7, 2021 The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). 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). In its May 27th petition, the Department indicates it will need “8 Hours to ensure that all documents reproduced, does not contain any information that fall under Public Record Law Exemptions.” The Department identifies the lowest paid employee “whose normal hourly rate is $49.05” as the “employee who has the necessary skill to complete the search and segregation.”

Officer Gerald Arvelo SPR21/1357 Page 4 June 7, 2021 Request One The Department has not cited any exemptions under the Public Records Law that may be applicable to the records, or provided any information regarding why such records are likely to contain exempt information. Please be advised that the current language of Exemption (c) prohibits its application to records related to law enforcement misconduct investigations. See G. L. c. 4, § 7(26)(c). Accordingly, I find the Department has not met its burden to explain how the response could not be prudently completed without segregation or redaction. Request Two Given the public interest served by limiting the cost of public access to the requested records, the Department has not met its burden to explain how the response could not be prudently completed without segregation or redaction or without a waiver of statutory limits on fees. Therefore, the Department may not assess an hourly rate to exceed $25.00. Conclusion Accordingly, I find the Department has established good cause for a time extension of 30 business days as described above. However, the Department’s petition to assess a fee for segregation and redaction cannot be granted at this time. To the extent the responsive records contain the exempt information required by law, the Department may assess a fee for segregation and redaction. 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 this estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). Attorney Sharma may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Attorney Sharma has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d)(iv)(4), 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Arielle Sharma, Esq.