Rich Saltzberg v. Tisbury, Town of - Police Department (SPR 20212013)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 20, 2021 SPR21/2013 Meghan Montesion Admn. Assistant/Records Officer Tisbury Police Department 32 Water Street Vineyard Haven, MA 02568 Dear Ms. Montesion: I have received the petition of Rich Saltzberg of Martha’s Vineyard Times appealing the response of the Tisbury Police Department (Department) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On July 5, 2021, Mr. Saltzberg requested “… any and all internal investigation reports and internal investigation documentation focused on [a named] former officer in the Tisbury Police Department.” The Department responded on July 29, 2021. Unsatisfied with the response, Mr. Saltzberg appealed, and this appeal, SPR21/2013, was opened as a result. Fees -Municipalities If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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, 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

Meghan Montesion SPR21/2013 Page 2 August 20, 2021 municipalities may charge more than $25 per how if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). The Department’s July 29th fee estimate In its July 29th fee estimate, the Department stated, “… it is estimated that it will cost $200.04 to research and redact the responsive records. There are 60 pages that need redactions (5 minutes/page) at this time which will also need to be copied at $.05 per page.” The breakdown is as follows: 3 hours to research and locate the responsive records at the rate of $24.63/hour = $73.89 5 hours to review and make redactions required by law at the rate of $24.63 = $123.15 60 copies $.05= $3.00 The Department claimed Exemptions (a),(c),(e) and (f) to withhold the requested records. Although the Town explained that redactions are necessary based upon several public records exemptions, it is unclear whether the Department is charging for exemptions that are not required by law. See G. L. c. 66, § l0(d)(iii) (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)). The Department's fee estimate has not explained with specificity why the indicated amount of time is necessary for producing the requested records. The Department must explain what tasks are necessary to provide the records. Further, the Department’s fee estimate lacks confirmation that the rate of $25 per hour is of the lowest paid employee who is capable of performing the task(s). For the reasons discussed above, the Department must revise its fee estimate or provide further explanation of how the $200.04 fee assessed in its July 29th estimate is consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Department is ordered to provide Mr. Saltzberg with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

Meghan Montesion SPR21/2013 Page 3 August 20, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Rich Saltzberg