Nicole K. Ouellette v. Barnstable, Town of - Police Department (SPR 20212919)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 9, 2021 SPR21/2919 Kathleen I. Hinckley Barnstable Police Department 1200 Phinneys Ln Hyannis, MA 02601 Dear Kathleen Hinckley: I have received your petition on behalf of the Barnstable Police Department (Department) seeking permission to charge for time spent segregating or redacting responsive records and a waiver of statutory limits on fees that may be assessed in responding to a public records request. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor, Attorney Nicole K. Ouellette. G. L. c. 66, § 10(d)(iv). In a letter dated October 20, 2021, Attorney Ouellette requested five categories of records concerning the Department and Internal Affairs reports. Petition 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). The statute sets out a two-prong test for determining whether the Supervisor may approve an agency’s petition to allow the agency 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 was not made for a commercial purpose. 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

Kathleen I. Hinckley SPR21/2919 Page 2 November 9, 2021 The second prong of the test is whether the fee represents an actual and good faith representation by the agency 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 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) 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 petition dated November 3, 2021, the Department states, “[s]ubject to [the Supervisor of Records’] approval of this petition, we estimate that the costs of responding to this request will be $204.50, which we would require to be paid in full prior to providing the requested records.” The Department notes it has “…58 Field Interviews combined within the last five (5) years. The Department is required to devote more than two (2) hours of time to search for, compile, segregate and redact the records, and first 2 hours of search time has been excluded from [the] cost estimate.” Further, “[t]he pages of the requested Field Interrogation records totals 102 pages.

Kathleen I. Hinckley SPR21/2919 Page 3 November 9, 2021 Each page will be reviewed for content, redacted where applicable and copied. This will take approximately 3.5 hours. We estimate that it will take approximately 30 minutes to review and redact, where applicable, 1 Internal Affairs investigation.” The Department contends that “[p]ortions of the 102 pages will be redacted pursuant to exemptions (a) and (f) of G. L. c. 4, sec. 7(26), the Public Records Law.” The Department notes that “[m]any of the field investigations include records and data which concern an identifiable individual that relates to the nature or disposition of a criminal charge or an arrest.” The Department asserts that “[m]any field investigations include undercover narcotic activity. Many of these investigations are ongoing and identify witnesses, informants or complainants. Information that would identify witnesses will be redacted under exemption (f), along with any other information which, if disclosed, would prejudice effective law enforcement.” Citing Exemption (c), the Department asserts that “[o]ther redactions may be made as appropriate under exemption (c), including medical information, home address and telephone numbers, and juvenile information. These records contain information which, if disclosed, would constitute an unwarranted invasion of personal privacy.” The Department explains, “[a]s the field investigations contain sensitive information regarding undercover drug activity in our Town, the lowest paid employee who has the necessary skill to complete the search and segregation of these records is Det. Sgt. Meaghan Cunningham. Det. Sgt. Cunningham is acutely aware of current drug investigations in our town and is able to discern what is and is not a public record and what would or would not jeopardize an undercover drug investigation. As no other employee is able to fill this request we are petitioning to be allowed to increase the hourly fee from the $25.00 to $51.10, which is the hourly rate of the Det. Sgt. Meaghan Cunningham.” Conclusion 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 cannot be granted. However, this does not preclude the Department from charging for segregation and redaction that is required by law at an hourly rate of $51.10. When preparing a fee estimate for the provision of the requested records, the Department is advised to provide a detailed explanation to the requestor detailing why the amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Department must provide a response to Attorney Ouellette within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Attorney Ouellette may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1).

Kathleen I. Hinckley SPR21/2919 Page 4 November 9, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Nicole K. Ouellette, Esq.