Dusty Christensen v. Easthampton, City of - Police Department (SPR 20221038)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 19, 2022 SPR22/1038 Chief Robert J. Aliberti Easthampton Police Department 32 Payson Avenue Easthampton, MA 01027 Dear Chief Aliberti: I have received the petition of Dusty Christensen of the Daily Hampshire Gazette appealing the response of the Easthampton Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 16, 2021, Mr. Christensen requested, “[t]he internal affairs report, and any other accompanying documentation, for all cases.” On April 6, 2021, Mr. Christensen amended the request to include the following records: “…the final investigative report — including the original complaint that generated an investigation — for all internal affairs cases contained in the EPD log.” Previous appeals This request was the subject of previous appeals. See SPR21/0143 Determination of the Supervisor of Records (February 3, 2021); SPR21/0346 Determination of the Supervisor of Records (February 26, 2021); SPR21/1236 Determination of the Supervisor of Records (June 1, 2021); SPR21/1714 Determination of the Supervisor of Records (July 30, 2021); SPR21/2110 Determination of the Supervisor of Records (September 2, 2021) and SPR21/3215 Determination of the Supervisor of Records (December 16, 2021). The Department responded on May 2, 2022. Unsatisfied with the response, Mr. Christensen petitioned this office and this appeal, SPR22/1038, 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

Chief Robert J. Aliberti SPR22/1038 Page 2 May 19, 2022 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). The Department’s May 2nd Fee Estimate In its May 2nd response, the Department advised that there is an outstanding balance due in the amount of $156.25 as follows: “the actual work to search, segregate and redact required an additional 6.25 hours requiring an additional payment of $156.25.” The Department also advised that, “[t]he investigative report, 2016-1: has been withheld under Exemption (a) - Specifically or by necessary implication exempted from disclosure by statute: Massachusetts General Laws Chapter 41 Section 97D - all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A; redacted in part under Exemption (f) - Withholding of details that would tend to identify complainants, witnesses or voluntary informants, even in the instances where an investigation has concluded; redacted in part under Exemption (o) - Home address, personal email address or home telephone number of government employees; redacted in part under Exemption (p) - The name, home address, personal email address, and home telephone number of a family member of a government employee.” Current appeal- fee estimate In his appeal, Mr. Christensen asserts, “I question the legality of attempting to charge additional fees after a fee estimate has already been paid. I also question the EPD’s insistence that those fees be paid before the city fulfills any further public records requests.” Pursuant to 950 C.M.R. 32.07(2)(b), if fees are being assessed, a records access officer shall provide a written, itemized, good faith estimate of any fees that may be charged to produce the records prior to complying with a public records request within ten business days following receipt of a request. It is unclear whether the Department provided the additional fee of $156.25 within the ten day requirement. The Department must clarify.

Chief Robert J. Aliberti SPR22/1038 Page 3 May 19, 2022 Current appeal- Exemption (a) In his appeal, Mr. Christensen further asserts, “… the EPD said that it is withholding the investigative report from one internal investigation — titled 2016-1 — in its entirety.” In camera inspection In order to facilitate a determination as to the applicability of the Department’s claims to withhold the records, the Department must provide this office with the un-redacted copy of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations, 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay. For the reasons discussed above, I find the Department provide further explanation of how the additional fee assessed is consistent with G. L. c. 66, § 10(d). Accordingly, the Department is ordered to provide Mr. Christensen with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 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.

Chief Robert J. Aliberti SPR22/1038 Page 4 May 19, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Dusty Christensen