Joshua Dankoff v. New Bedford, City of - Police Department (SPR 20221224)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 8, 2022 SPR22/1224 Michael Boswell New Bedford Police Department 871 Rockdale Ave New Bedford, MA 02740 Dear Mr. Boswell: I have received the petition of Joshua Dankoff, of Citizens for Juvenile Justice (CFJJ), appealing the response of the New Bedford 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 8, 2022, Mr. Dankoff requested seven categories of records: 1. Any new policy or policy revisions made after October 1, 2020 concerning stop and frisk and/or field interrogation. 2. Stop and frisk and/or field interrogation data for all stop and frisk/field interrogation incidents from October 1, 2020 through when the search is conducted is requested. . . . In particular, we request incident-level data in CSV or excel format (or, if necessary, another electronic format) that includes [13 columns.] 3. Data regarding the number of people that have been identified by your department as gang affiliated, gang involved, or part of a ‘threat risk group’ since the New Bedford Police Department’s new policy (Policy 419) was promulgated in 2021. . . . Specifically, we request an extract of your department’s gang member database (or associated list) to include the following [9] columns[.] 4. A list of current gangs your department considers active, including the following information: [a] Name of gang [b] Location of gang, including any known or suspected locations of gang activity [c] Number of active members of each gang. 5. Records that show the dates of homicides that occurred in the city of New Bedford between January 1, 2005 and the date the search is made. We also request the date of birth (or at least the day and month of birth) of the homicide victims. 6. Any data or records of the number of traffic stops in New Bedford that did not 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

Michael Boswell SPR22/1224 Page 2 June 8, 2022 lead to an arrest, citation, or written warning. We request the following information on these traffic stops: . . . 7. Records that show crime incident data for stabbing and shooting incidents from January 1, 2020 to the date of the search. . . . Specifically, we request the following information for stabbing and shooting incidents: [a] Sex of victim(s) and perpetrator(s) [b] Age of victim(s) and perpetrator(s) [c] Race of victim(s) and perpetrator(s) [d] Ethnicity of victim(s) and perpetrator(s) [e] Location of incident [f] Time and date of incident[.] The Department provided a response on February 24, 2022, which included certain responsive records. The Department also provided a fee estimate to produce records responsive to Items 2, 5, 6, and 7 of the request. Unsatisfied with the response and objecting to the fees, Mr. Dankoff petitioned his office and this appeal, SPR22/1224, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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. Current appeal Item 1 In regards to Item 1, the Department states that it “. . . does not have a policy concerning stop and frisk and/or field interrogation. The Department rescinded the High Intensity Patrol Policy on January 7, 2021. The Department has identified the Gang Policy as a responsive

Michael Boswell SPR22/1224 Page 3 June 8, 2022 document to this request. See attached Policy number 419 Criminal Organizations.” Upon review of the file, it does not appear Mr. Dankoff is appealing this portion of the Department’s response. Items 3 and 4 Regarding Items 3 and 4, the Department indicates “. . . the Department does not currently have any responsive records. The database is in the process of being updated based on the new criteria in the new policy [Policy number 419 Criminal Organizations]. We anticipate that we may have responsive records when the update is complete.” In his appeal petition, Mr. Dankoff states the following: In response to Question 3, [the Department] stated that ‘the Department does not currently have any responsive records. The database is in the process of being updated based on the new criteria in the new policy [Policy number 419 Criminal Organizations]. We anticipate that we may have responsive records when the update is complete.” The [Department] policy was passed in 2021 so they have had many months to update their database. [The Department] is bound by the presumption of disclosure of responsive public records. CfJJ is requesting that [the Department] produce the gang-related records requested by June 1, 2022, or as much as is ready on that date. In light of the above, I find the Department must clarify whether any records exist at this time that are responsive to this request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, the Department is advised that the Public Records Law requires that a records access officer, “identify a reasonable timeframe in which the municipality shall produce the public records sought . . .” See G. L. c. 66, 10(b)(vi); see also 950 C.M.R. 32.06(2)(i). Consequently, I find the Department must identify a ----- reasonable timeframe it intends to provide the responsive records. To the extent possible, the Department must provide responsive records on a rolling basis. Items 2, 5, 6, and 7 Fee estimate – municipalities 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).

Michael Boswell SPR22/1224 Page 4 June 8, 2022 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 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 appeal In his appeal petition, Mr. Dankoff states: [The Department] responded to CfJJ’s records request on February 24, 2022, which is outside the allowed 10-business day window to reply. Accounting for Presidents’ Day, which was February 21, 2022, the response was more than 10- business days from February 8, 2022. In its response, [the Department] provided a cost estimate of $311,508.50 to produce a portion of the records requested. However, because they responded after the 10-business day allowance, [the Department] is not able to ask for payment to produce the records and must produce the requested records free of charge. G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” In this case, where Mr. Dankoff submitted his request on February 8, 2022, and the Department provided a response on February 24, 2022, I find it is unclear whether the Department complied with G. L. c. 66, § 10(e). Specifically, the Department must demonstrate whether it provided a response to Mr. Dankoff’s request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request. Reasonableness of fee estimate In the event that the Department can demonstrate that it complied with G. L. c. 66, § 10(e), it is necessary to analyze the reasonableness of the fee estimate. Item 2 For Item 2, the Department indicates that it “. . . has identified 542 field incident reports.

Michael Boswell SPR22/1224 Page 5 June 8, 2022 The Department does not have a database containing the requested information and will have to manually read all 542 field incident reports to determine responsiveness. Before providing you with a copy of each responsive field incident report, we will need to review them and make any redactions required by law. . . . We estimate that it will take 180.67 hours to search for, copy and make the mandatory redactions to 542 field incident reports. This number was calculated by estimating that it will take 20 minutes to search for, copy, review and redact each field incident report. (542 field incident reports x 20 minutes per field incident report= 10,840 minutes) (10,840 mins/60 minutes = 180.67 hours.) . . .” The Department states in its response that it is assessing a fee for 180.67 hours to search for, copy, and redact 542 field incident reports. However, based on the response, it is unclear how that amount of time is required. The Department must clarify the time it is allocating to searching, copying and redacting the field incident reports. Also, although the Department estimates 20 minutes per each field incident report, it is unclear the number of pages there are, and how many minutes per page the Department requires to review the responsive records. Item 5 For Item 5, the Department explains, “[t]he Department has identified 1 spreadsheet containing approximately 60 homicides. Before providing you with a copy of the spreadsheet, we will need to review it and make any redactions required by law. . . . We estimate that it will take 2 hours to review, reproduce and make the mandatory redactions to the spreadsheet. . . .” Based on the Department’s response, it is unclear how the Department requires 2 hours to review the spreadsheet. The Department must clarify the time it is allocating to redact and reproduce the responsive spreadsheet. Item 6 For Item 6, the Department provided an estimated fee but sought clarification as to a specific date range in order to provide Mr. Dankoff with a proper fee estimate. Upon review of the file, it does not appear Mr. Dankoff is appealing this portion of the Department’s response. Item 7 For Item 7, the Department states that it “. . . has identified approximately 36,833 (approximately 17,000 per year x 2 years and 2 months) offense and arrest reports. The Department does not have a database containing the requested information and will have to manually review all 36,833 offense and arrest reports to determine responsiveness. Before providing you with a copy of each offense report and arrest report, we will need to review them and make any redactions required by law. . . . We estimate that it will take 12,277.67 hours to search for, copy and make the mandatory redactions to 36,833 offense and arrest reports. This

Michael Boswell SPR22/1224 Page 6 June 8, 2022 number was calculated by estimating that it will take 20 minutes to search for, copy, review and redact each offense and arrest report. (36,833 offense and arrest reports x 20 minutes per report= 736,660 minutes) (736,660 mins/60 minutes = 12,277.67 hours.) . . .” The Department estimates that the “[t]otal for all requested documents (not including request #6 which needs clarification): 180.67 hours + 2 hours + 12,277.67 hours = 12,460.34 total hours [at a rate of $25 =] $311,508.50.” The Department indicates it will not charge for the first 2 hours of work. The Department states that it is assessing a fee for 12,277.67 hours to search for, copy and make the mandatory redactions to 36,833 offense and arrest reports. However, based on the response, it is unclear how that amount of time is required. The Department must clarify the time it is allocating to searching, copying and redacting the offense and arrest reports. Also, although the Department states it requires 20 minutes per each offense and arrest report, it is unclear the number of pages there are, and how many minutes per page the Department requires to review the responsive records. Further, the Department notes that it intends to redact responsive records under the following statutes: G. L. c 93H; G. L. c 66, § 10B; G. L. c 265, § 24C; G. L. c. 41, §§ 97D-97D1; G. L. c. 119, § 60A; Driver’s Privacy Protection Act, 18 U.S.C. § 2721; G. L. c. 6, § 167 and HIPPA Privacy Rule, 45 C.F.R. § 164.502(a)(1), as well as Exemptions (c) and (f) of the Public Records Law. The Department is reminded that 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). While the Department may assess a fee for redaction for information that is required by law, it is unclear if the Department is assessing a fee for redactions under Exemptions (c) and (f). The Department must clarify these matters. In addition, Mr. Dankoff states in his appeal petition: In response to Question 7, . . . CfJJ has not requested a manual review and [the Department’s] response to this request is a bad faith attempt to fabricate obstacles of time, burden, and cost to avoid producing responsive documents. Even without a dedicated database, [the Department] utilizes records management software. This software gives [the Department] the ability to search records with ease, without requiring manual review each record. CfJJ requested for raw data, and there is no justified need to spend 20 minutes with every single offense and arrest report. [The Department’s] response is not in line with what the request is asking and is proposing an inefficient and costly process when there are much simpler options. This type of deficient response should not be allowed because it contravenes the spirit and purpose of the law governing public records.

Michael Boswell SPR22/1224 Page 7 June 8, 2022 Please note, a custodian of records cannot charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police - - - Comm’r of Boston, 378 Mass. 281, 289-90 (1979). The parties are encouraged to communicate further to determine whether any responsive records may be provided more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a 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 municipality to produce records sought more efficiently and affordably). Mr. Dankoff may also wish to clarify the scope of the records sought in Item 7 of his request to enable the Department provide the records more efficiently and affordably. Conclusion Accordingly, the Department is ordered to provide Mr. Dankoff with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Joshua Dankoff