Barry Ingber v. Medford, City of - Police Department (SPR 20213373)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 7, 2022 SPR21/3373 Lieutenant Joseph Casey Records Access Officer Medford Police Department 100 Main Street Medford, MA 02155 Dear Lieutenant Casey: I have received the petition of Barry Ingber of Medford People Power appealing the response of the Medford Police Department (Department/MPD) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 29, 2021, Mr. Ingber requested “all records in possession of the MPD or the City pertaining to resident complaints, incidents of misconduct, and charges of excessive force since January 1, 2016.” The Department responded on October 15, 2021, and following a series of additional correspondence, Mr. Ingber modified his request on November 3, 2021. The Department again responded on November 5, 2021, providing numerous responsive records, along with a fee estimate for providing additional records. Unsatisfied with the Department’s response, Mr. Ingber 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 agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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. Att’y 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. 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

Lieutenant Joseph Casey SPR21/3373 Page 2 January 7, 2022 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. Ingber contends that “the communications between the MPD records officer and [Mr. Ingber] demonstrate clearly that the MPD did not comply with the public records laws when responding to [Mr. Ingber’s] public records request.” Consequently, he requests this office “to order the MPD to provide [him] with these records in electronic format at no cost.” The Department’s November 5th Response In its November 5, 2021 response, the Department provides Mr. Ingber with numerous responsive records, and provides a fee estimate for providing additional records. In its fee estimate, the Department states the following: The time that was expended in processing the amended request . . . for calendar year 2020 . . . was approximately 4.5 hours . . . including reviewing, redacting, copying, drafting the response, and sending. This does not include the time spent in reviewing and compiling all the complaints,

Lieutenant Joseph Casey SPR21/3373 Page 3 January 7, 2022 incidents of misconduct, and charges of excessive force since January 1, 2016; or answering the prior request regarding the agreements between the City of Medford and the Police Departments Unions Collective Bargaining Agreements in relation to Body Worn Cameras. The remainder of [the] amended request of November 3, 2021, “. . . for all of the other complaints and incidents (for years 2017, 2018, 2019, and 2021)” will take approximately 15 to 20 hours to complete.” Additionally, the Department indicates that it intends to charge a fee of $25.00 per hour. Based on the Department’s response, it is unclear why the Department requires the amount of time indicated to produce the requested records. Specifically, it is unclear why “15 to 20 hours” is necessary for reviewing, redacting, and copying the records. The Department must provide further details regarding the tasks involved and what each task entails, including the time it is allocating to compiling, segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Further, the Department is advised that under the Public Records Law, a municipality may assess a fee for “time to search for, compile, segregate, redact or reproduce a record,” but not for the time spent drafting and sending a response. See G. L. c. 66, § 10, (d)(iii). Additionally, the Department has not explained if the hourly rate being used is that of the lowest paid employee with the necessary skill to perform the task. The Department must clarify these matters. For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fee assessed is consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Department is ordered to provide Mr. Ingber with a response to the 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 this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Barry Ingber