Rich Saltzberg v. Oak Bluffs, Town of - Police Department (SPR 20220044)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 21, 2022 SPR22/0044 Erik Blake Chief of Police Oak Bluffs Police Department 2 Oak Bluffs Avenue Oak Bluffs, MA 02557 Dear Chief Blake: I have received the petition of Rich Saltzberg of the Martha’s Vineyard Times appealing the response of the Oak Bluffs Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 30, 2021, Mr. Saltzberg requested, “internal or external investigation reports generated between Jan. 1, 2008 and Dec. 30, 2021.” On January 4, 2022, Mr. Saltzberg provided the Department with a narrowing of the scope of his request. The Department then provided a response and fee estimate to Mr. Saltzberg on January 5, 2022. Unsatisfied with the Department’s fee estimate, Mr. Saltzberg petitioned this office and this appeal, SPR22/0044, was opened as a result. Previous Petition This request was the subject of a petition from the Department. See SPR22/0056 Supervisor of Records Determination (January 14, 2021). In my January 14th determination, I found that 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 could not be granted. In addition, the Department was not permitted to charge fees in excess of $25 per hour for the provision of the requested records. Fee estimate – municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). 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

Chief Erik Blake SPR22/0044 Page 2 January 21, 2022 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). The Department’s January 5th response On January 5, 2022, the Department responded to Mr. Saltzberg by providing him with a fee estimate stating, “the Police Department anticipates it will take approximately 10 hours to comply with your request. The lowest hourly rate employee qualified and available to gather and produce the material is paid $55.07.” The Department then provided a revised fee estimate to Mr. Saltzberg on January 12, 2022. The Department explained that, “[b]ased on [Mr. Saltzberg’s] recent offers to reduce or modify [his] request, [the Department is] advised that the [Department] will reduce its estimate of time from 10 hours to 8 hours to produce the requested files. With the requested rate of $55.07 for a Sergeant, that results on a fee estimate of $440.56. If this is acceptable, let [the Department] know or simply provide a check in that amount to the Police Department.” Mr. Saltzberg believed that the revised fee estimate remained “an exorbitant, unsupported, and unacceptable fee.” Based on the Department’s fee estimates, it is unclear why the Department requires the amount of time listed above to produce the requested records. The Department must provide further information on the details regarding the tasks involved, 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). The Department must clarify this Additionally, where the Department was denied a fee petition under G. L. c. 66, § 10(d)(iv), to charge an hourly rate of $55.07, the Department must provide a fee estimate which does not charge fees in excess of $25 per hour for the provision of the requested records. See SPR22/0056 Supervisor of Records Determination. Conclusion Accordingly, the Department is ordered to provide Mr. Saltzberg with a revised fee estimate, provided in a manner consistent with this order, the Public Records Law and its

Chief Erik Blake SPR22/0044 Page 3 January 21, 2022 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: Rich Saltzberg; Martha Vineyard's Times Jack Collins