Rich Saltzberg v. Tisbury, Town of - Police Department (SPR 20212261)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 20, 2021 SPR21/2261 Joseph R. Duquette, Esq. KP Law 101 Arch Street, 12th Floor Boston, MA 02110 Dear Attorney Duquette: I have received the petition of Rich Saltzberg of the Martha’s Vineyard Times, appealing the response of the Tisbury Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 2, 2021, Mr. Saltzberg requested “all internal investigation tapes, transcripts, diagrams, emails, reports, notes, minutes, photographs, footage, memos, letters, orders, logs, findings, and documentation of any kind pertaining to 2011 crimes and police activity at…West Spring Street.” Previous appeal This request was the subject of a previous appeal. See SPR21/1115 Determination of the Supervisor of Records (May 12, 2021). I closed SPR21/1115 after the Department provided Mr. Saltzberg with a supplemental response on May 12, 2021. Following the supplemental response, on May 17, 2021, Mr. Saltzberg narrowed his request, seeking specific police transcripts. The Department provided a revised fee estimate on May 26, 2021. Following the remittance of fees, the Department provided Mr. Saltzberg with the responsive records. Subsequently, on August 22, 2021, Mr. Saltzberg submitted a new public records request, seeking “. . . any and all remaining internal investigation tapes, transcripts, diagrams, emails, reports, notes, minutes, photographs, footage, memos, letters, orders, logs, findings, and documentation of any kind pertaining to 2011 crimes and police activity at…West Spring Street.” On September 1, 2021, the Department responded by providing Mr. Saltzberg with its May 12th fee estimate to the February 2nd request. Objecting to the fees, Mr. Saltzberg petitioned this office and this appeal, SPR21/2261, was opened as a result. Fee estimates – municipalities A municipality may assess a reasonable fee for the production of a public record except 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

Joseph R. Duquette, Esq. SPR21/2261 Page 2 September 20, 2021 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 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). The Department’s September 1st response and May 12th fee estimate In its September 1, 2021 response, the Department states that it “. . . maintains that it has provided a comprehensive list of all documents in its possession responsive to [Mr. Saltzberg’s] request as outlined in the attached response and has no ‘remaining’ documents outside of those listed. The Department will work to provide the responsive records pending receipt of the fee estimate of $947.52.” In its May 12th fee estimate, the Department states “. . . the remaining 2,000+ records contain voluminous records . . . and the [Department] need not perform an additional substantive review of such records unless and until the fee estimate is paid. 950 CMR 32.06(2)(f). The [Department], accordingly, requests that its fee estimate of $947.52 is reasonable in light of both the underlying nature of the crime which would involve substantive redactions required by law pursuant to exemption (a) as well as the sheer volume of documents that the [Department] would have to substantively review and redact with its limited staff. . . .” The Department had provided a breakdown of the fee in a March 1, 2021 response as follows: • Comprehensive search for responsive records at Town Hall, the Police Department, and Various Offices: 12 hours @ 23.36/hour = $280.32 • Segregate responsive records: 4 hours @ 23.36/hour = $93.44 • Estimated time to review for necessary redaction: 16 hours @ 23.36/hour = $373.76 • Town Counsel time to conduct privilege review and segregate any information protected by the attorney-client privilege: 8 hours @ 25.00/hour = $200.00

Joseph R. Duquette, Esq. SPR21/2261 Page 3 September 20, 2021 Total = $947.52 Where Mr. Saltzberg submitted a new public records request on August 22nd, it is unclear how the Department may apply its May 12th fee estimate to the February 2nd request, to this current request. Where the Department has previously provided a comprehensive list of the responsive documents in its possession, it is unclear how the Department may charge for search time. Further, it is unclear how many minutes per page the Department requires to review the responsive records. The Department must clarify these issues. I encourage Mr. Saltzberg and the Department to communicate further in order to facilitate producing records efficiently and affordably. See G. L. c. 66, § l0(a)(vii) (an agency or 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 agency or municipality to produce records sought more efficiently and affordably). 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 ten (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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Rich Saltzberg Chief Mark G. Saloio