Lawrence Bland v. Barnstable Police Department (SPR 20211721)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 19, 2021 SPR21/1721 Kathleen I. Hinckley Records/Property Supervisor Barnstable Police Department 1200 Phinneys Lane, Hyannis, MA 02601 Dear Ms. Hinckley: I have received your petition on behalf of the Barnstable Police Department (Department) seeking permission to charge for time spent segregating or redacting responsive records as well as a waiver of statutory limits on fees that may be assessed in responding to the request. G. L. c. 66, § 10(d)(iv). As required by law, the Department furnished a copy of this petition to the requestor, Lawrence Bland. G. L. c. 66, § 10(c). On July 2, 2021, Mr. Bland requested “[t]he Barnstable Police Department recorded dispatch (turret tape) for Monday June 19, 2019 commencing at 17:00 hours and ending at 20:00 hours.” 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). 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

Kathleen I. Hinckley SPR21/1721 Page 2 July 19, 2021 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 The Department’s July 12th letter states, “[t]he exemptions that are applicable in the log are exemption A and C. Juvenile information and domestic violence records fall under exemption A. Witness names, addresses and telephone numbers as well as medical information fall under exemption C.” The Department posits that “[t]hese records contain information which, if disclosed, would constitute an unwarranted invasion of personal privacy. Such information contains intimate details and the privacy interest involved outweigh the public interests in the disclosure of that information.” The Department estimates “...that it will take 6 hours to listen and review and redact the dispatch tapes from 1700 hours to 2000 hours. The total length of the audio is 2 hours and 21 minutes (141 minutes). It took 68 minutes to redact 30 minutes. (141/30) x 68 = 319.6 minutes = 5 hours and 20 minutes. Plus 30 minutes to set up (access, download, organize and import into software). 10 minutes to write to a CD.” Further, the Department notes that “[t]he lowest paid employee who has the necessary

Kathleen I. Hinckley SPR21/1721 Page 3 July 19, 2021 skill to complete the search and segregation of these records is Ross Lloyd, Dispatch Supervisor. This is due to the fact that Ross is the only employee in our department who has the knowledge and software to perform this task. As no other employee is able to fill this request we are petitioning to be allowed to increase the hourly fee from the $25.00 to $37.59, which is the hourly rate of the Dispatch Supervisor.” Conclusion In light of the Department’s petition, I find the Department has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the Department may assess a fee for the time spent to segregate and redact these requested records at $37.59 per hour. Please note, Mr. Bland 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, ',''· - ~ -I - . - Rebecca S. Murray Supervisor of Records cc: Lawrence Bland