Mitchell Kosht v. Chelmsford, Town of - Police Department (SPR 20211744)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 20, 2021 SPR21/1744 Marissa Cameron Records Access Officer Chelmsford Police Department 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 as well as a waiver of statutory limits on fees that may be assessed in responding to the request. 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 July 6, 2021, Attorney Kosht requested various categories of records concerning the Department, including Internal Affairs Investigation Records. 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. G. L. c. 66, § 10(c). 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 SPR21/1744 Page 2 July 20, 2021 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). 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 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 SPR21/1744 Page 3 July 20, 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 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Current Petition In its July 14, 2021 petition, the Department seeks “permission to charge Mr. Kosht a fee for the time needed to segregate and redact the responsive documents based on the provisions detailed in exemption C, including privacy rights, medical files, witness, and victim names all of which may constitute an unwarranted invasion of privacy.” The Department further notes “...exemption F allows for redaction of investigatory materials, the release of which would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” The Department contends that it “...will need approximately 20 hours total 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 18 hours. With the amount of hours it will take to produce such records, we are seeking 15 additional days as well.” With respect to fees, the Department posits that “[t]he lowest paid employee with the necessary skills to complete the search, compilation, and redaction would be Deputy Daniel Ahem. The Department’s reasonable cost estimate will be roughly $1,282.50 ($71.25 hourly rate) and may increase or vary depending on my findings.” 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. Further, it is unclear how the request could not be prudently completed without a fee in excess of $25.00 per hour. Specifically it is unclear why this task cannot be

Marissa Cameron SPR21/1744 Page 4 July 20, 2021 completed by a lower paid employee. Please note, this does not preclude the Department from charging for segregation and redaction that is required by law at $25.00 per hour. With respect to the time, I find the Department has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the Department an extension of 15 business days to furnish copies of records responsive to Attorney Kosht’s request. See G. L. c. 66, § 10(c). The Department is advised it must provide the records in a manner consistent with the Public Records Law and its Access Regulations. To the extent possible, the Department must provide responsive records on a rolling basis. Please note, Attorney Kosht 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: Mitchell Kosht, Esq.