Matthew Robin v. Amherst, Town of - Police Department (SPR 20213324)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 28, 2021 SPR21/3324 Captain Ronald A. Young Administrative Services Amherst Police Department 111 Main Street Amherst, MA 01002 Dear Captain Young: I have received your petition on behalf of the Amherst Police Department (Department) requesting permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, I understand the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On December 8, 2021, Matthew Robin of the Committee for Public Counsel Services Strategic Litigation Unit requested various categories of records “pertaining to each time the Amherst Police Department or an employee thereof has been civilly sued or criminally prosecuted for actions or omissions committed in the course of employment after January 1, 2010.” I note that on December 17, 2021, Daniel Jaffe, also of the Committee for Public Counsel Services provided this office and the Department with an email oposing the Department’s petition. 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). 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

Captain Ronald A. Young SPR21/3324 Page 2 December 28, 2021 The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality 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. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality 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 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). Current Petition In its December 21, 2021 petition, the Department states the following: The Depmtment recognizes that there are portions of these files that are certainly public

Captain Ronald A. Young SPR21/3324 Page 3 December 28, 2021 records. The records that are in possession are not formatted in the manner described by the petitioner. Many of these files, however, contain information which may be protected or are subject to redaction pursuant to state and federal law. . . . Such records or material contained therein may be withheld or redacted under any of the exemptions to the Public Records Law, other applicable provisions of law, and/or common law privileges, such as the attorney-client privilege. . . . Given the records at issue, based on the initial good faith work associated with this request, the Police Department anticipates it may withhold and/or redact[] information pursuant to exemptions (c) and (f) of the Public Records Law. Specifically, based on its initial assessment, certain requested records implicate individuals’ medical or personnel information and/or individuals’ privacy interests, such information will be withheld or redacted pursuant to exemption (c) of the Public Records Law. In addition, the Police Department anticipates withholding and/or redacting the identities of voluntary complainants and witnesses under exemption (f) of the Public Records Law. 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 that is not required by law cannot be granted. However, this does not preclude the Department from charging for segregation and redaction that is required by law under Exemption (a). Conclusion This office encourages the Mr. Robin and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See 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 agency to produce records sought more efficiently and affordably). Any subsequent fee estimate from the Department must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Mr. Robin has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d)(iv)(4), 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew Robin