Donovan Lee v. Easthampton, City of - Police Department (SPR 20211643)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 19, 2021 SPR21/1643 Chief Robert J. Aliberti Easthampton Police Department 32 Payson Avenue Easthampton, MA 01027 Dear Chief Aliberti: I have received the petition of Donovan Lee appealing the response of the 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 12, 2021, Mr. Lee requested, “(1) The department armorer's log of all weapons that are owned or authorized by the department; (2) The file maintained by the department Training Coordinator of all issued and authorized duty weapons for each member of the department; and (3) The department Training Coordinator's log of each officer's qualifications and re-qualifications.” On June 25, 2021, the Department provided a response. Unsatisfied with the Department’s response, Mr. Lee petitioned this office and this appeal, SPR21/1643, was opened as a result. 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). 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

Chief Robert J. Aliberti SPR21/1643 Page 2 July 19, 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 25th response In its June 25th response, the Department indicates “[d]ue to the nature of the records requested and the amount of time required to comply with such request(s), additional time is required to produce the requested records. The City will provide you with records responsive to this request within fifteen (15) business days from receipt of the below referenced estimated fee payment which may be submitted to the City Clerk.” The Department explained “[b]ased on the City's good faith estimate, a fee of twenty-five dollars ($25.00) will be required which is based on an estimated time of one (1) hour at twenty- five dollars ($25.00) per hour to complete your request(s). Please be advised that the actual cost and fee of producing the record(s) may vary upon preparation of such record(s).” In his appeal, Mr. Lee contends “[t]he EPD states I must pay a fee of $25 and wait 15 business days to receive the records I have requested. I believe the fee should be waived. I am also disappointed to wait 15 business days to receive records that should be readily on hand.” G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Based on the Department’s response, it is unclear why the Department requires the amount of time indicated to produce the requested records and whether the Department complied with G. L. c. 66, § 10(e). Specifically, the Department must demonstrate whether it provided a response to Mr. Lee’s request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request. Additionally, the Department has not explained if the hourly rate being used is that of the lowest paid employee with the necessary skill to perform the task and what records the Department will be providing to Mr. Lee in the fee estimate. The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Lee with a response to his request in a manner consistent with the Public Records Law and its Access Regulations within 10 business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Lee may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1).

Chief Robert J. Aliberti SPR21/1643 Page 3 July 19, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Donovan Lee Richard Massina, Esq.