Rich Saltzberg v. Oak Bluffs, Town of - Police Department (SPR 20220056)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 14, 2022 SPR22/0056 Erik Blake Chief of Police Oak Bluffs Police Department 2 Oak Bluffs Avenue Oak Bluffs, MA 02557 Dear Chief Blake: I have received your petition on behalf of the Oak Bluffs Police Department (Department) ) seeking a waiver of statutory limits on fees that may be assessed in responding to the request and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Department furnished a copy of this petition to the requestor. Id. Originally, on December 30, 2021, Rich Saltzberg of the Martha Vineyard's Times requested “any and all Oak Bluffs Police Department internal or external investigation reports generated between Jan. 1, 2008 and Dec. 30, 2021.” Petitions for ability to assess fees 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. 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). The Supervisor may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith 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 SPR22/0056 Page 2 January 14, 2022 representation by the municipality to comply with the request, the fee is necessary such that the request could not have been prudently completed without the redaction, segregation or fee in excess of $25 per hour, and the amount of the fee is reasonable and the fee is not designed to limit, deter or prevent access to requested public records. G. L. c. 66, § 10(d)(iv). 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. Id. - Current Petition In its January 11, 2022 petition to this office, the Department states “[k]indly treat this letter as a request, pursuant to G.L. c.66, § 10(d)(ii)-(iii) and 950 C.M.R. 32.6(4) to charge a fee for segregating and/or redacting as required by law. See also, G. L. c. 66, §10(d); 950 C.M.R. 32.07(2)(d). Kindly also grant permission to charge fees in excess of the maximum hourly rate of $25 per hour for time required to comply with a request. Pursuant to G.L. c. 6, § 10(d)(iv).” The Department then states, “[s]ince the request is for reports of Internal Affairs investigations, it is essential that the Police Department review the existing reports to redact such things as Criminal Offender Records Information (G.L. c. 6, § 167), domestic violence records or reports (G.L. c. 41, § 97D, c. 41, § 98F, and c. 209A, §8), address concealed under the state’s confidentiality program (G.L. c. 9A, §§26), G.L. c. 151 § 4, (d) & (e), Social Security Numbers, the identities of undercover police or other law enforcement officers or confidential informants, and confidential medical information.” Fee in Excess of $25.00 per hour In its petition, the Department also states the following concerning its request to charge a fee in excess of $25.00 per hour: At this time, the Police Chief is out of state at a conference and the only Lieutenant recently retired. Ordinarily, they might be more appropriate individuals to undertake this sensitive review of IA reports. Therefore, the requesting party has the benefit of a lower rate than might otherwise be involved. At this time, the lowest hourly rate employee that is appropriate for this task is a Sergeant. The hourly rate quoted is the Sergeant’s base hourly rate. After a conversation with this office on January 12, 2022, the Department provided additional information in an email explaining the Department’s base hourly rate for a Sergeant is $55.07 an hour. The base hourly rate for a Sergeant had been provided in the Department’s fee estimate to Mr. Saltzberg. Conclusion

Chief Erik Blake SPR22/0056 Page 3 January 14, 2022 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. In addition, the Department may not charge for fees in excess of $25 per hour for the provision of the requested records. Please not, this does not preclude the Department from charging for segregation and redaction that is required by law. 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 Mr. Saltzberg within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Saltzberg may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Sincerely, ~ .J') .A . - - .. ~ , e . r Rebecca S. Murray Supervisor of Records cc: Rich Saltzberg; Martha Vineyard's Times Jack Collins