David Jeswald v. Abington, Town of - Police Department (SPR 20212378)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 29, 2021 SPR21/2378 JoAnn Gillis Records Clerk Abington Police Department 215 Central Street Abington, MA 02351-2113 Dear Ms. Gillis: I have received the petition of David Jeswald appealing the response of the Abington Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 7, 2021, Mr. Jeswald requested certain records regarding identified law enforcement officers, officers on duty on December 26, 27, and 28, 2021, and policies referencing prosecutorial discretion and police misconduct. The Department responded and provided a fee estimate. Unsatisfied with the fee estimate, Mr. Jeswald petitioned this office and SPR21/2378 was opened as a result. 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 ($.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 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

JoAnn Gillis SPR21/2341 Page 2 September 29, 2021 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 August 13th Fee Estimate In its August 13, 2021 response, the Department provided a fee estimate of $43.75 based upon approximately 1.75 hours. The Department stated, “[t]he lowest paid employee capable of performing the necessary work to search for and produce such emails makes over $25/hour. Therefore, the hourly rates will be reduced to $25/hour, as required by law.” The Department opined, “[b]ased on the nature of the records you are seeking, the Department anticipates redacting the names of voluntary complainants and witnesses contained in the police records pursuant to exemption (f) of the Public Records Law …” Although the Department has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 1.75 hours of employee time, it is unclear how the Department requires 1.75 hours to produce responsive records. Further, the Department explained that redactions are necessary based upon Exemption (f). Please be advised, 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, § l0(d)(iii). I am not aware that the Department has submitted a petition under G. L. c. 66, § 10(d)(iv). Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records. See 950 C.M.R. 32.06(4)(g). It is also not clear what tasks are involved to prepare responsive records for production. As such, the Department must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). In his petition, Mr. Jeswald contends he is entitled to a waiver of fees because he lacks the financial ability to pay the fee. Mr. Jeswald is advised that while a record custodian may waive applicable fees, under the criteria in 950 C.M.R. 32.07(2)(k)(l-3), the Supervisor has no authority to order that a record custodian do so. In addition, a ruling of indigency by a court of law is inapplicable to requests for records made pursuant to the Public Records Law. See G. L. c. 261, § 27A (defining indigency for civil, criminal or juvenile proceedings or appeals in any court). Therefore, it is not within the Supervisor’s enumerated powers to either require or approve such a waiver. For the reasons discussed above, the Department must revise its fee estimate or provide further explanation of how the $43.75 fee assessed in its August 13th fee estimate is consistent with G. L. c. 66, § 10(d).

JoAnn Gillis SPR21/2341 Page 3 September 29, 2021 Conclusion Accordingly, the Department is ordered to provide Mr. Jeswald with a response to the request, in 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: David Jeswald