Chris Fitzgerald v. Chelmsford, Town of - Police Department (SPR 20211633)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 12, 2021 SPR21/1633 Marissa Cameron Chelmsford Police Records (RAO) 2 Olde North Road Chelmsford, MA 01824 Dear Ms. Cameron: I have received your petition on behalf of the Chelmsford Police Department (Department) seeking an extension of time to produce records and requesting 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 City furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). On June 23, 2021, Chris Fitzgerald requested the following: 1. List of all stops and searches (sometimes known as Field Interrogation Reports or Observations) [FIOs] from the dates of January 1, 2019 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. 2. Badge numbers of all officers involved in such stops. 3. Name, version, and provider of case management system. Petition 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; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; 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

Marissa Cameron SPR21/1633 Page 2 July 12, 2021 (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). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. -- 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). Current Petition In its July 2, 2021 petition, the Department requests “15 additional days in order to produce records for this request.” The Department explains the following: With the records management system that [the] department uses, locating stops and searches of this nature cannot be easily done. Each motor vehicle stop made, from January 1, 2019 to January 1, 2021 will have to be opened and reviewed individually in which could take hours of reviewing alone. Although [the Department’s] records management system does capture most, and if not all information request, [the] department will have to still search through several different sections to find this data. Unfortunately, it does not do so in just one module. We will then need to pull any stops in which resulted in a Massachusetts Unifrom Citation in order to locate demographic information that has been requested. Once these stops and/or citations are located, redactions must be made as required by law. The redactions will be necessary based upon several public records exemptions including but not limited to: Exemption A – Exemption applies when there is a law that either exempts the information from being a public record or the law prohibits the information being released to the public.

Marissa Cameron SPR21/1633 Page 3 July 12, 2021 Exemption C – Privacy – Exemptions applies when there is any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of privacy. Exemption F – Investigatory – Investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. For example, ongoing investigations, future investigations, and/or confidentiality. I find 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 15 business days. Please note the time may begin to run once the Department receives payment. G. L. c. 66, § 10(c). Petitions to Assess Fees The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). 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 or to charge in excess of $25 an hour for the provision of public 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 is not 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 or fee in excess of $25 per hour; 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. 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

Marissa Cameron SPR21/1633 Page 4 July 12, 2021 ($.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 Petition In its July 2, 2021 petition, the Department “is requesting the . . . cost estimate be approved.” The Department explains: [T]he department will need approximately 8 hours total in order to comply with this request. The department acknowledges that it may not assess a fee for the first two hours. As a result of this, the fee estimate would be based on 6 hours. The lowest paid employee with the necessary skills to complete the search, compilation, and redaction would be . . . the Records [Access] Officer. The departments reasonable cost estimate will be roughly $150.00 ($25.00 hourly rate) and may increase or vary depending on [the Department’s] findings. 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 that is not required by law cannot be granted. However, this does not preclude the Department from charging for segregation and redaction that is required by law. Conclusion With respect to the time petition, I find the Department has established good cause for a time extension of 15 business days as described above. This office encourages Chris Fitzgerald 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

Marissa Cameron SPR21/1633 Page 5 July 12, 2021 produce records sought more efficiently and affordably). Any further fee estimate from the Department must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Chris Fitzgerald 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: Chris Fitzgerald