Lindsay Burroughs v. Danvers, Town of - Police Department (SPR 20220388)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 22, 2022 SPR22/0388 Rachel L. Millette, Esq. Office of Town Counsel Town of Danvers Murphy, Hesse, Toomey & Lehane, LLP Crown Colony Plaza 300 Crown Colony Drive Quincy, MA 02169 Dear Attorney Millette: I have received your petition on behalf of the Town of Danvers (Town) seeking an extension of time to produce records, permission to charge for time spent segregating or redacting responsive records, and a waiver of statutory limits on fees that may be assessed in responding to the request. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, the Town furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On February 2, 2022, Lindsay Burroughs requested various records related to an October 2013 homicide. Petitions for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i)the need to search for, collect, segregate or examine records; (ii)the scope of redaction required to prevent unlawful disclosure; (iii)the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv)efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v)whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and 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

Rachel L. Millette, Esq. SPR22/0388 Page 2 February 22, 2022 (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. -- The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Request for Additional Time to Produce Responsive Records In its February 16, 2022 petition, the Town states the following: The responsive records need to be reviewed and redacted on the basis of a number of different grounds [as dicussed below]. In addition, Town Counsel will need to determine what information was made public as part of the criminal proceedings in this matter. As a result, it is not possible for Town Counsel to review and redact the responsive records within 10 business days. Therefore, Town hereby petitions for an extension of time to respond to the request. The Town will be unable to produce the records during normal business hours of operation without an extension given the level of review required by Town Counsel. Pursuant to M.G.L. c. 66, section 10(c), the Town requests an additional 30 business days beyond the time specified under the statute (25 business days) – for a total of 55 business days from the date of receipt payment for the work, to respond to the portion of the request that seeks legal invoices. I find that in light of the need to collect, segregate and examine the records, the scope of redaction required to prevent unlawful disclosure, and the capacity of the Town to produce the request without the extension, the Town has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). The Town is granted an extension of 30 business days. Please note the time may begin to run once the Town receives payment. G. L. c. 66, § 10(c). Petition to Assess Fees The Supervisor of Records (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

Rachel L. Millette, Esq. SPR22/0388 Page 3 February 22, 2022 actual and good faith representation by the municipality to comply with the request. 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. 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 2 (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).

Rachel L. Millette, Esq. SPR22/0388 Page 4 February 22, 2022 Current Petition In its petition, the Town states that “the records sought in the request need be reviewed, and potentially redacted, for several reasons: First, the request seeks information from a criminal justice agency (the Danvers Police Department) regarding a criminal investigation and criminal proceedings. As a result, the responsive records are likely to contain information protected by the Massachusetts Criminal Offender Record Information System Act (‘CORI Act’), M.G.L. c. 6, § 167, et seq. . . . As the responsive records are likely to contain such information, the records will need to be reviewed and redacted in accordance with the CORI Act and Exemption (a) of the Public Records Law. Second, as the Town is in possession of records received as part of the investigation from Danvers High School, the responsive records contain information covered under student records regulations and public records information, specifically, personally identifying information of public school students.. . . . Specifically, student information is protected by the Federal Education Rights Privacy Act, Massachusetts General Law, Chapter 71, Section 34A to 34H, and 603 CMR 23.00 et. seq. Third, these records must be reviewed to determine whether they are subject to redaction on the basis of court orders issued in legal proceedings related to this incident. Fourth, these records require redactions in accordance with the exemption set for at M.G.L. c. 4, § 7(26)(c). . . . The responsive records are likely to contain medical information. Given the nature of the crime, the records are also likely to contain information of a highly personal nature which would result in personal embarrassment to an individual of normal sensibilities. Fifth, the responsive records are also likely to contain information which must be redacted pursuant to the investigatory exemption contained within Exemption (f) of the Public Records Law. M.G.L. c. 4, § 7(26)(f). . . . The responsive records are likely to contain information identifying witnesses and the investigatory process of the police department in homicide investigations. Lastly, the responsive records also contain information which must be redacted pursuant to Exemption (n) of the Public Records Law. M.G.L. c. 4, § 7(26)(n). . . . The responsive records contain information regarding the layout and security cameras at Danvers Public Schools, the disclosure of which is likely to jeopardize public safety.” Additionally, the Town clarifies that it “seeks that the Supervisor allow it to charge for the redactions required under Exemptions (c), (f), and (n) for the reasons outlined [above]. Given that the other redactions are required by law, the Town is not seeking authorization to charge for such redactions.”

Rachel L. Millette, Esq. SPR22/0388 Page 5 February 22, 2022 In light of the Town’s petition, I find the Town has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the Town may assess a charge for the segregation and redaction of such exempt material. Fee in Excess of $25.00 per Hour In its petition, the Town states the following concerning its request to charge a fee in excess of $25.00 per hour: In this case, Town Counsel is the lowest paid employee with the necessary skill to determine whether CORI requires certain portions of the records sought to be redacted. While performing that review, Counsel can also determine whether other exemptions apply, rather than have a separate employee review the records at additional cost. Town Counsel’s hourly rate is $165. Notwithstanding that rate, the Town requests that the Supervisor allow it to charge $75 per hour to complete the review. I find the Town has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). I find the Town may assess a fee limited to $75.00 per hour for attorney review. Conclusion Accordingly, I find the Town has established good cause for a time extension of 30 business days as described above. Additionally, to the extent the responsive records contain the exempt information described above, the Town may assess a fee for segregation and redaction. Further, as described above, the Town may assess a fee limited to $75.00 per hour for attorney review. Please note, Ms. Burroughs 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(c), (d)(iv)(4), § 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Lindsay Burroughs