Mitchell Kosht v. Dracut, Town of (SPR 20211675)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 14, 2021 SPR21/1675 David J. Chartrand Deputy Chief of Police Dracut Police Department 110 Loon Hill Road Dracut, MA 01826 Dear Chief Chartrand: I have received your petition on behalf of the Dracut Police Department (Department) seeking an extension of time to produce records and 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, it is my understanding that the Department furnished a copy of this petition to the requestor, Attorney Mitchell Kosht. Id. In a letter dated June 28, 2021, Attorney Kosht requested various records that pertain to “…investigations into allegations of police misconduct conducted by the Internal Affairs Department.” 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; (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. 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 David J. Chartrand SPR21/1675 Page 2 July 14, 2021 G. L. c. 66, § 10(c). 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). 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). 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 estimate 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).

Chief David J. Chartrand SPR21/1675 Page 3 July 14, 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). Current Petition In its July 7th petition, the Department seeks an extension of time to respond and permission “…to charge a fee to review and redact police department records requested by Mitchell Kosht.” The Department notes, “[t]he sensitivity of the requested files cannot be overstated. The Town must review the requested records prior to release.” The Department cites Exemption (a) stating, “[t]he request seeks records that are likely to contain CORI information, and perhaps records of sexual assault or domestic violence charges, both of which categories do not constitute public records.” The Department further cites Exemption (c) contending that “… it is likely that highly personal information about individuals’ personal experiences may be contained in responsive records. The Town will want to make an individualized decision as to whether such information is subject to release, utilizing the balancing test as set forth in PETA, Inc. v. Dep't of Agricultural Resources, 477 Mass. 280 (2017).” Citing Exemption (f), the Department asserts that “[t]he responsive documents are likely to contain witness statements and investigatory techniques that, if disclosed, could inhibit future investigations or discourage witnesses from cooperating with the department.” The Department further notes “[i]t is possible that the documents contain communications with the Town Counsel regarding any potential discipline or a union grievance.” The Department contends that “[t]he essential fact here is not that these exemptions apply, but rather, the information within the responsive records may fall within the above enumerated exemptions to the Public Records law. The town cannot merely provide [the requestor] with access to the entire contents of the responsive records. The Town must perform this necessary review.” Conclusion Given the public interest served by limiting the cost of public access to the requested records, I am unable to grant permission to charge for time spent segregating or redacting responsive records. However, this does not preclude the Department from charging for segregation and redaction that is required by law. With respect to the time petition, I learned that the requestor has agreed to the Department’s request for more time. In a letter dated July 7, 2021, Attorney Kosht states, “[w]e are happy to agree to an extension of time.” Accordingly, I find it is unnecessary to opine on the Department’s petition for an extension of time to produce records. When preparing a fee estimate for the provision of the requested records the Department is advised to provide a detailed explanation to the requestor detailing why the amount of time is

Chief David J. Chartrand SPR21/1675 Page 4 July 14, 2021 necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Department must also provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. 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). Sincerely, Rebecca S. Murray Supervisor of Records cc: Mitchell Kosht, Esq.