Liz Jensen v. Easthampton, City of - Police Department (SPR 20211559)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 8, 2021 SPR21/1559 Sergeant Chad Alexander City of Easthampton Police Department 32 Payson Avenue Easthampton, MA 01027 Dear Sergeant Alexander: I have received the petition of Liz Jensen appealing the response of the City of 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 June 5, 2021, Ms. Jenson requested “[a] list of all LLC’s, companies, and/or non-profits that the [Department] obtains policy manuals, training bulletins, and consulting services from, including in-house training.” On June 18, 2021, the Department provided Ms. Jensen with a response and fee estimate for $25.00 to produce the actual policy manuals, training bulletins and any other training materials. Objecting to the fees, Ms. Jensen petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Fees – municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). 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

Sgt. Chad Alexander SPR21/1559 Page 2 July 8, 2021 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). The Department’s June 18th fee estimate In its June 18th fee estimate, the Department states, [a]s the City is a municipality with a population less than twenty thousand (20,000) people, a fee will be assessed for the costs associated with time spent searching for, compiling, segregating, reproducing and redacting the requested records as required by law…Based on the [Department’s] good faith estimate, a fee of twenty-five dollars ($25.00) will be required which is based on an estimated tie of one (1) hour at twenty-five dollars ($25.00) an hour to complete your request(s).” The Department’s estimate does not break down how much time is necessary per task for one hour of time. In addition, the Department has assessed the maximum allowable hourly rate of $25.00; however, the Department has not explained whether that hourly rate is the lowest hourly rate of the employee who has the necessary skill required to search for, compile, segregate, redact and/or reproduce a record requested. G. L. c. 66, § 10(d)(iii). The Department must clarify this hourly rate and the amount of time assessed for each task. In its estimate, the Department also assessed time to segregate and redact exempt material from the policy manual and training materials. However, 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). The Department did not claim any exemptions that will allow the Department to assess fees for segregation and/or redaction of the records, and to the best of my knowledge the Department did not file a petition with the Supervisor to assess fees for segregation and/or redaction of the records. The Department must clarify its fee pertaining to segregation and/or redaction. Reasonable timeline to provide records The Department’s June 18th response also advised Ms. Jensen that an extension of fifteen (15) days from the date of receipt of the payment of the fee estimate is necessary to produce the records. Please note, if the municipality does not intend to permit inspection or furnish a copy of a requested record within ten (10) business days following receipt of the request; the municipality shall inform the requestor in writing not later than 10 business days after the initial receipt of the request for public records. See G. L. c. 66, § 10(a), (b). I also note that the Department’s written response identified a reasonable timeframe in which the Department shall provide the records. For a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records. See G. L. c. 66, § 10(b)(vi).

Sgt. Chad Alexander SPR21/1559 Page 3 July 8, 2021 Under the Public Records Law, a records custodian is not required to produce responsive records until receipt of payment of a reasonable fee. G. L. c. 66, § 10(a)(iii). Once fees are paid, a records custodian must provide the responsive records. Possible modification of the June 5th request While the Department provided a response and fee estimate to provide Ms. Jensen with the policy manual and training records, a review of Ms. Jensen’s June 5th request reveals that she requested a “list” of LLC’s, companies, and/or non-profits that provide the Department with policy manuals and training materials. Therefore, it is unclear whether Ms. Jensen still seeks the list of companies, non-profits and other entities that provide training materials to the Department. It is also unclear whether the Department is in possession of a list of entities that provide the Department with any policy manuals and training materials. Under the Public Records Law, the Department is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Given that the Department is under no duty to create a “list,” I find that the Department must clarify whether it is in possession of a “list,” as requested by Ms. Jensen. I also encourage Ms. Jensen to communicate with the Department as to whether she has modified or changed her request from a “list” of providers who supply the Department with policy manuals and training materials, to the actual policy manual and training materials that the Department provided a fee estimate for. Conclusion Accordingly, the Department is ordered to provide Ms. Jensen with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 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: Liz Jensen