Grace Ferguson v. Beverly, City of - Police Department (SPR 20220743)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 11, 2022 SPR22/0743 Chief John G. LeLacheur Beverly Police Department 191 Cabot Street Beverly, MA 01915 Dear Chief LeLacheur: I have received the petition of Grace Ferguson of WBUR appealing the response of the Beverly Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 17, 2022 Ms. Ferguson requested, “… records concerning sworn officers of the Beverly Police Department dating back to January 1, 2010” as follows: • All internal affairs cases of domestic violence, and • All internal affairs cases of sexual violence, including but not limited to rape and sexual assault. The Department responded on March 29, 2022. Unsatisfied with the Department’s response, Ms. Ferguson petitioned this office and this appeal, SPR22/0743, was opened as a result. Fees -Municipalities 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. 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 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 John G. LeLacheur SPR22/0743 Page 2 April 11, 2022 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 how if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). The Department’s March 29th fee estimate In its March 29th fee estimate, the Department identified approximately 300 documents in response to the request and cited a fee estimate of $325.00 as follows: At a rate of $25.00 per hour, the total estimated fee for reviewing, redacting, and electronically producing records is $325.00 ((15 hrs. - 2 hrs.) x $25 = $325.00). In its response, the Department stated, “…the Department does not have an employee with such necessary skill who is paid less than $25.00 per hour. Consistent with the Public Records Law, the first two (2) hours of personnel work are free of charge; thereafter an hourly rate of $25.00 will be charged. M.G.L. c. 66, § 10(d)(iii); 950 CMR 32.07(2)(m).” The Department further asserted, “the 15 hours will be attributed to segregating and redacting pages as required by law. For instance, potentially responsive pages may contain information that must be withheld or redacted based on several factors including, but not limited to, whether the potentially responsive records contain: information protected by attorney-client privilege; information that constitutes attorney work product; medical information exempt pursuant to G.L. c. 4, § 7(26)(c); and/or other personal information, the disclosure of which may constitute an unwarranted invasion of personal privacy. Moreover, information exempted from disclosure due to privacy concerns may also be exempt from disclosure by statute or necessary implication thereof.” The Department also claimed that Exemption (a) is applicable pursuant to the statute, G.L. c. 41, § 97D. Although the Department has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 15 hours of employee time, it is unclear how the Department requires this many hours to produce responsive records. It is not clear from the Department's estimate how many hours are allocated to search, and how many hours are allocated for segregation, and redaction of the records. Further, although the Department explained that redactions are necessary based upon Exemption (c) it is unclear whether the Department is charging for exemptions that are not required by law. See G. L. c. 66, § l0(d)(iii) (a fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law for or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv)). In addition, it is not clear what tasks are involved to prepare responsive records for production. Accordingly, the Department must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable).

Chief John G. LeLacheur SPR22/0743 Page 3 April 11, 2022 For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the $325 fee assessed in its March 29th estimate is consistent with G. L. c. 66, § 10(d). I encourage Ms. Ferguson and the Department to communicate further in order to facilitate producing records efficiently and affordably. Ms. Ferguson may wish to include applicable time periods or additional factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Department must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or 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 or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Department is ordered to provide Ms. Ferguson 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: Grace Ferguson