Mitchell Kosht v. Chelmsford, Town of - Police Department (SPR 20211884)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 3, 2021 SPR21/1884 Marissa Cameron Records Access Officer Chelmsford Police Department 2 Olde North Road Chelmsford MA, 01824 Dear Ms. Cameron: On July 28, 2021, this office received your petition on behalf of the Chelmsford Police Department (Department) seeking a waiver of statutory limits on fees that may be assessed in responding to the requests. G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Department furnished a copy of their petition to the requestor, Attorney Mitchell Kosht. G. L. c. 66, § 10(c). In a letter dated July 6, 2021, Attorney Kosht requested various categories of records concerning the Department, including Internal Affairs Investigation Records. Prior Appeal This request was the subject of a previous appeal. See SPR21/1744 Determination of the Supervisor of Records (July 20, 2021). In my July 21st determination, I found that “[g]iven 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 completed by a lower paid employee.” 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). 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 SPR21/1884 Page 2 August 3, 2021 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). 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; 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). 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 28th petition, the Department “…is respectfully filing a petition in order to provide a good faith cost estimate to Mr. Mitchell Kosht regarding his request for records with the Chelmsford Police Department received through our FOIA Direct system on July 6, 2021.” The Department explains, “[i]n our previous request, our department had estimated that the hours to complete this request would be approximately 20 hours. The department acknowledges that it

Marissa Cameron SPR21/1884 Page 3 August 3, 2021 may not assess a fee for the first two hours, therefore, our fee estimate would be based on 18 hours. Our reasonable cost estimate was said to be roughly $1,282.50 at the hourly rate of Deputy Chief Ahern, which is $71.25.” The Department asserts that “[d]ue to the sensitive nature of the requested documents, which could and will likely include medical information as to addictions and other abuse disorders, these materials can only be viewed by a limited number of employees, Chief and Deputy Chief. The viewing of this material by the lowest paid employee would be a clear violation of the individual’s privacy rights which far outweigh public interest. For this reason, we must insist that, any review and redaction be completed by the Deputy Chief of our department. Please review our request to charge the requester for the time it will take to search, collect, examine, redact, and copy the respondent materials at the Deputy Chiefs hourly rate of $71.25.” Conclusion After another careful and thorough review of this matter, I respectfully decline to reverse my 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 or permission to charge in excess of $25.00 an hour cannot be granted. However, this does not preclude the Department from charging $25.00 an hour for segregation and redaction that is required by law. Sincerely, Rebecca S. Murray Supervisor of Records cc: Mitchell Kosht, Esq.