Elizabeth Levitan, Esq. v. Lowell, City of - Police Department (SPR 20211380)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 15, 2021 SPR21/1380 Jackie Cook Keeper of Records Lowell Police Department 50 Arcand Drive Lowell, MA 01852 Dear Ms. Cook: I have received the petition of Attorney Elizabeth Levitan appealing the response of the Lowell Police Department (Department) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On January 29, 2021, Attorney Levitan requested three categories of records related to school resource officers (SRO). The Department provided a response on March 3, 2021, which included responsive records and a fee estimate. Unsatisfied with the Department’s response, Attorney Levitan petitioned this office and this appeal, SPR21/1380, 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

Jackie Cook SPR21/1380 Page 2 June 15, 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) 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 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). Current appeal In her appeal, Attorney Levitan states, “[o]n February 9, 2021 we received a reply stating that the city will need additional time to comply with the request due to the scope of the request, that a response would be furnished by March 3, 2021, that there ‘may be a fee associated with this request.’…[o]n March 3, 2021 we received a partial response with an estimated fee of $748.95…[w]e are now appealing the fee assessment for this request on two grounds. First, the response received on February 9, 2021 failed to comply with the requirements under MGL c. 66 §10(b)…. [t]he response received on February 9, 2021 failed to provide an itemized, good faith estimate of any fees that may be charged…[s]econd, we are appealing this determination on the basis that the documents sought are a matter of public interest, specifically they are sought in order to identify whether the municipality is complying with the reporting requirements to the Department of Elementary and Secondary Education (DESE) under the Criminal Justice Reform Act (CJRA)… we are asking that the fee’s be waived to bring public transparency to the issue.” In its February 9, 2021, response, the Department states, “…due to the volume of the request, the city will need more than the required 10 days to gather the records you are seeking …[t]he city expects that it will be able to furnish any responsive documents by 03/05/2021 in accordance with M.G.L. c.66, Section 10. (b) (vi)[.] There may be a fee associated with this request. I don’t have an estimate at this time but will provide you with a detailed invoice, once all the records have been identified.”

Jackie Cook SPR21/1380 Page 3 June 15, 2021 In its March 3, 2020 response, the Department states, “I wanted to follow up on our last correspondence and provide you with a portion of your public records request and provide an itemized invoice for obtaining the reports.” The Department indicates “…it will be 29 hours of work at $25/hour which equals $725[.] We can also charge .05 per page which equals $23.95 Therefore the total due is $748.95.” The Department indicates “…you respectfully asked that all fees be waived but the scope of your request and the limitations of our software make that impossible. I would have to dedicate one person to do nothing but this request for almost an entire work week therefore we have no choice but to charge.” Despite its responses, it is unclear if the Department met all the requirements under G. L. c. 66, § 10(b). The Department is advised in order to assess a fee for the requested records, it must demonstrate it provided a response in compliance with G. L. c. 66, § 10(b). The Department must clarify if it provided an itemized, good faith estimate of any fees that may be charged to produce the records. See G. L. c. 66, § 10(b) (viii). Please be advised the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request. Under the Public Records Law, the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. See G. L. c. 66, § 10(d)(v); see also 950 C.M.R. 32.07(2)(k). ----- This office encourages the Attorney Levitan and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(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 municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Department is ordered to provide Attorney Levitan with a response to the request, provided in a manner consistent with this order, the Public Records Law and its

Jackie Cook SPR21/1380 Page 4 June 15, 2021 Regulations within ten (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: Elizabeth Levitan, Esq.