Eoin Higgins v. Pittsfield, City of - Police Department (SPR 20212240)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 15, 2021 SPR21/2240 Kerri Striebel Records Access Officer Pittsfield Police Department 39 Allen Street Pittsfield, MA 01201 Dear Ms. Striebel: I have received the petition of Eoin Higgins appealing the response of the Pittsfield Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 26, 2021, Mr. Higgins requested: [A]ll emails and attachments, from January 1, 2019 to January 1, 2020, from and to members of the Pittsfield Police Department concerning Amazon Ring. These records include, but are not limited to, emails and attachments from [two named officers] having to do with the Amazon Ring giveaway in June 2019, as well as any Amazon Ring partnership, official or otherwise, with the department. Previous Appeal This request was the subject of a previous appeal. See SPR21/2118 Supervisor of Records Determination (September 1, 2021). In my September 1st determination, I closed SPR21/2118 in light of the Department’s supplemental response. Unsatisfied with the Department’s response, Mr. Higgins appealed, and this case was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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

Kerri Striebel SPR21/2240 Page 2 September 15, 2021 It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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. Fee estimate – Municipalities 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 Appeal In his appeal petition, Mr. Higgins expresses doubt that “there are thousands of records within the narrow, one-year timeframe [he has] asked for.” He further expresses doubt “that the email search will be time consuming.” The Department’s August 31st Response In its August 31, 2021 response, the Department states that “a global email search producing thousands of emails not meeting the exact criteria of the request will need to be reviewed entirely.” The Department goes on to suggest the following:

Kerri Striebel SPR21/2240 Page 3 September 15, 2021 In order to produce the records sought in a more efficient and affordable manner, it is possible that the scope of the request could be modified. For instance, the Department would suggest the following reasonable modification to [Mr. Higgins’] request: Not including solicitations, advertisements, etc. If [Mr. Higgins] would like [his] request to be modified in this manner, [the Department] may be able to advise [him] of the reasonable fee associated with [his] request. G. L. c. 66, § 10(e) Please be advised that G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where Mr. Higgins submitted a public records request on July 26, 2021, and the Department provided a response on August 31, 2021, I find it is unclear whether the Department complied with G. L. c. 66, § 10(e). Specifically, in order to charge a fee, the Department must demonstrate whether it provided a response to Mr. Higgins’ request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request. Modification In light of the Department’s response suggesting a modification, this office encourages Mr. Higgins and the Department to continue to communicate in order to facilitate providing records more efficiently and affordably. G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Department is ordered to provide Mr. Higgins with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Eoin Higgins