Mara Dolan v. Fitchburg, City of - Police Department (SPR 20220875)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 15, 2022 SPR22/0875 Captain Matthew LeMay Technical Services Commander Fitchburg Police Department 20 Elm Street Fitchburg, MA 01420 Dear Captain Lemay: I have received your petition on behalf of the Fitchburg Police Department (Department) seeking a waiver of statutory limits on fees that may be assessed in responding to the request. 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 April 5, 2022, Attorney Mara Dolan requested “any and all evidence of disciplinary infractions or findings of misconduct including, but not limited to, being the subject of criminal charges or an investigation, allegations of discrimination, an investigation into the officers' truthfulness or integrity, or a finding that the officer isn’t credible, for [five named officers].” I note that in an email to this office and the Department on April 14, 2022, Attorney Dolan opposed the Department’s petition, contending that “the fee proposed is exorbitant and may be prohibitive, and the basis for the fee estimate is unclear.” 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 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). 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

Captain Matthew LeMay SPR22/0875 Page 2 April 15, 2022 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). Current Petition In its April 14, 2022 petition, the Department states that it has “conducted research in regards to the number of incidents involving the Fitchburg Police Officers. 18 individual reports exist comprised of approximately 103 individual pages. [The Department has] exhausted the first two hours in locating these documents.” Internal Affairs records are not accessible for civilian staff to process. The only individuals in our department allowed to process this request would be either the chief of police or one of the three captains. The lowest rate of a police captain is $61.70 per hour.

Captain Matthew LeMay SPR22/0875 Page 3 April 15, 2022 As such [the Department is] requesting the fee assessment be amended to account for the rate of pay for a captain to process. Given the public interest served by limiting the cost of public access to the requested records, permission to charge in excess of $25 per hour cannot be granted. Conclusion As noted above, I am unable to grant permission to charge in excess of $25 per hour. Please note, this does not preclude the Department from charging for segregation and redaction that is required by law at $25.00 per hour. This office encourages the Department and Attorney Dolan to communicate directly to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification to the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). 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 Attorney Dolan within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Attorney Dolan may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Mara Dolan, Esq.