Barry Ingber v. Medford, City of - Police Department (SPR 20220116)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 24, 2022 SPR22/0116 Lieutenant Joseph Casey Records Access Officer Medford Police Department 100 Main St. Medford, MA. 02155 Dear Lieutenant Casey: I have received your petition on behalf of the Medford 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, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). 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. Previous Appeal This request was the subject of a previous appeal. See SPR21/3373 Supervisor of Records Determination (January 7, 2021). In my January 7th determination, I ordered the Department to revise its fee estimate or provide further expalanation of how the assessed fees are consistent with the Public Records Law. Subsequently, the Department responded on January 17, 2022, providing a revised fee estimate, and petitioning this office to charge for time spent segregating or redacting responsive records. 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). 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 SPR22/0116 Page 2 January 24, 2022 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 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).

Lieutenant Joseph Casey SPR22/0116 Page 3 January 24, 2022 Current Petition Subsequent to the Department’s Janaury 17th petition, in an email to this office on Janaury 19, 2022, Mr. Ingber contends that the Department “should not be entitled to charge fees because their original response did not meet the requirements established in G. L. c. 66, § 10(b).” G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where Mr. Ingber submitted a modified request on November 3, 2021, and the Department responded by providing a fee estimate on November 5, 2021, under G. L. c. 66, § 10(b), I find the Department may assess a fee to produce responsive records. In its January 17, 2022 petition, the Department states, among other things, that it “is petitioning the Supervisor of Records for approval to charge the statutorily allowable hourly fee of $25.00 for production of the requested records, including the time spent for segregating and/or redacting.” The Department submitted the current petition requesting permission to charge for time spent segregating or redacting responsive records on Janaury 17, 2022, more than ten business days after receipt of the November 3rd modified request. Accordingly, while the Department submitted a timely good faith fee estimate on Novmeber 5th as described above, the Department has not demonstrated that it submitted a timely petition for permission to charge for time spent segregating or redacting. Accordingly, while the Department may assess a fee for the time spent producing the records, permission to charge for time spent segregating or redacting cannot be granted. 950 C.M.R. 32.06(4)(g). Conclusion This office encourages Mr. Ingber 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 fee estimate from the City must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Mr. Ingber 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).

Lieutenant Joseph Casey SPR22/0116 Page 4 January 24, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Barry Ingber