Mitchell Kosht v. Dracut, Town of (SPR 20211383)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 9, 2021 SPR21/1383 David J. Chartrand Deputy Chief of Police Dracut Police Department 110 Loon Hill Road Dracut, MA 01826 Dear Deputy Chief Chartrand: I have received your petition on behalf of the Dracut Police Department (Department) requesting 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(d)(iv). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On May 19, 2021, Mitchell Kosht of the Committee for Public Counsel Services submitted a four part request. The Department’s petition applies to part four of Attorney Kosht’s request which seeks the following; ● “For each lawsuit listed, the following documents related to the underlying events and accusations: a. Any and all internal investigation reports (however named); b. Arrest reports; c. Use-of-force or other supplemental reports (however named); d. Any relevant body camera footage; e. Findings of a disciplinary hearing board (however named); f. Discipline actually imposed by the Dracut Police Department or other body; g. Any other documents relating to the Dracut Police Department's efforts to ascertain the truth of the accusations relayed in each lawsuit listed above.” Petitions 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). 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

David J. Chartrand SPR21/1383 Page 2 June 9, 2021 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). 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).

David J. Chartrand SPR21/1383 Page 3 June 9, 2021 In its June 1, 2021 petition, the Department requests “... permission to charge a fee to review and redact police department records and for a waiver of statutory limits on fees.” The Department states that “[t]here are four lawsuits to which the request relates. There are four boxes of documents. The Department has completed a quick review of the contents of the boxes and noted that they contain various police reports, arrest reports, and investigatory materials.” The Department cites Exemptions (a), (c), and (f), as well as attorney-client privileged communications. The Department posits that “[t]he essential fact here is not that these exemptions apply, but rather, that information within the responsive records may fall within the above enumerated exemptions to the Public Records Law. The Town cannot merely provide Mr. Kosht with access to the entire contents of the boxes of documents regarding the four cases. The Town must perform this necessary review.” The Department explains that “[g]iven the highly confidential nature of the records, Deputy Chief Chartrand is the lowest paid employee capable of performing this review. He is the only employee of the department who has received specialized training in both public records law and internal investigations. The process will consist of Deputy Chief Chartrand providing guidance to a lower paid employee who will perform the actual redactions. Administrative Assistant Kerry Noel is paid $26.31 per hour. Those redacted documents will then have to be reviewed by the Deputy Chief to verify that all redactions have been made pursuant to applicable law. The Deputy Chief is paid $76.22 per hour. Deputy Chief Chartrand has the authority to review these records, which may include confidential privacy information as described above.” In regards to fees, the Department estimates “...that it will take approximately 3 minutes, on average, to review, and as necessary, redact the estimated 1980 pages of documents. This includes 2 minutes of the actual copying and redaction at $26.31 per hour and the final review at 1 minute per page at $76.22 per hour. The estimated hours for the administrative assistant is 66. The estimated hours for the Deputy Chief is 33. 66 hours X $26.31=$1,736.46. 33 hours X $76.22=$2515.26. The total cost estimate is $4,251.72. Applying a blended hourly rate of $51.27 for the two hours that cannot [be] charged, the total estimated fee is $4,149.18.” Given the public interest served by limiting the cost of public access to the requested records, permission to charge for time spent segregating or redacting responsive records at a rate of $76.22 and $26.31 cannot be granted at this time. 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). -- Conclusion Accordingly, the Department may not charge for fees in excess of $25 per hour for the provision of the requested records. Please note, this does not preclude the Department from charging for segregation and redaction that is required by law. When preparing a fee estimate for the provision of the requested records the Department

David J. Chartrand SPR21/1383 Page 4 June 9, 2021 is advised to provide a detailed explanation to the requestor detailing why the amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Department must provide a response to Attorney Kosht within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Attorney Kosht may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Attorney Kosht 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: Mitchell Kosht, Committee for Public Counsel Services Ann Vandal