Grace Ferguson v. Marblehead, Town of - Police Department (SPR 20220904)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 2, 2022 SPR22/0904 Dennis King Chief of Police Marblehead Police Department 11 Gerry Street Marblehead, MA 01945 Dear Chief King: I have received the petition of Grace Ferguson appealing the response of the Marblehead Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 17, 2022, Ms. Ferguson requested the following records “dating back to January 1, 2010:” - All internal affairs cases of domestic violence, and - All internal affairs cases of sexual violence, including but not limited to rape and sexual assault. Previous Appeal This request was the subject of a previous appeal. See SPR22/0763 Supervisor of Records Determination (April 11, 2022). In my April 11th determination, I ordered the Department to provide further details regarding the tasks involved in its fee estimate. Subsequently, the Department responded on April 15, 2022, providing an updated fee estimate. Again objecting to the fees, Ms. Ferguson appealed, and this case was opened as a result. 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). 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

Dennis King SPR22/0904 Page 2 May 2, 2022 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). The Town’s April 15th Fee Estimate In its April 15, 2022 response, an attorney for the Town provides the following information: The underlying request requires that the Department compile and examine approximately 12 years of internal affairs and personnel files, which includes the files of 32 active officers and 10 to 15 officers that have either retired or resigned. At minimum, said examination requires 10 minutes per file, not including review for redaction and segregation required under G. L. c. 41, § 97D; G. L. c. 41, § 98F; and G. L. c. 209A, § 8 regarding confidentiality of domestic violence records. Hence, complying with Ms. Ferguson’s request will take at least eight hours. The Department further explains that the “Chief of Police . . . is the only Department employee qualified to examine, redact, and segregate the responsive records. He is paid at a rate of approximately $74.52 per hour.” Nevertheless, the Department indicates it is charging $25 per hour. Additionally, the Department explains that because “the Town has a population over 20,000, the Department is happy to eliminate the first two of the eight hours required to comply with Ms. Ferguson’s request in accordance with G. L. c. 66, § 10( d)(iii) - making for a revised fee assessment of $150.00.” In light of the Town’s April 15th response, where the Department has described the tasks involved, and indicated that it is charging for segregation and redaction required by law, I find the Town has met its burden to explain how it has provided a reasonable fee estimate for the production of records responsive to this request. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). Conclusion As set forth above, I find the Department has met its burden in responding to Ms. Ferguson’s request at this time. Any revision to the request would result in the requirement to issue a revised fee estimate. Accordingly, I will consider this administrative appeal closed.

Dennis King SPR22/0904 Page 3 May 2, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Grace Ferguson