James M. Conley v. Kingston, Town of - Town Administrator (SPR 20221288)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 16, 2022 SPR22/1288 Gloria Mitchell Assistant Town Administrator Town of Kingston Town Hall 26 Evergreen Street Kingston, MA 02364 Dear Ms. Mitchell: I have received the petition of James Conley appealing the response of the Town of Kingston (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 28, 2022, Mr. Conley made a public records request which was subsequently amended on April 7, 2022, seeking the following categories of records: 1. Copies of public records, detailed below, pertaining to the incident between a suspected thief and Kingston PD Lt. . . . in the Lowe’s parking lot on William Gould Way on October 20, 2021 including, but not limited to: a. Copies of emails or other written requests made by Lowes requesting Kingston PD to provide an undercover, or plain clothes, officer on that date. b. Receipts or any other financial transactions executed to the Town of Kingston by Lowe’s of Kingston, its corporate parent, or other agents acting in renumeration for the “undercover operation” reportedly being performed by [the named Lieutenant]. c. Copies of e-mails or other written communication transacted between the Kingston Police Department and members of the news media concerning the above-referenced incident. d. Copies of public statements made by the Kingston Police Department, in all of their versions, and any written communication transacted between Chief Maurice Splaine and Town Administrator . . . in the drafting of these statements. e. Copies of the results or reports of any and all investigations conducted by the Kingston Police Department as concerns [the named Lieutenant’s] actions that day, particularly as it pertains to the brandishing of his firearm on that date. . . . f. Please provide copies of any policy statements, by-laws, bulletins or other work product authored by Kingston Police command and disseminated to 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

Gloria Mitchell SPR22/1288 Page 2 June 16, 2022 officers that define their scope of responsibilities as “plain-clothes officers” and/or an “off duty officer” when faced with the commission of a crime in their presence. g. Please provide a written status of [the named Lieutenant’s] posting with the department and when that post will be filled by a qualified officer. Included with this would be an explanation for any delays in executing this posting. 2. Copies of all documents and other work product concerning the resignation of Kingston Harbormaster . . ., including, but not limited to: a. A copy of [named individual’s] resignation letter and acceptance of such by Chief Splaine. b. Meeting logs, appointment calendar entries, agendas or other written memorialization of any meetings between [a named individual], Chief Splaine and/or other town officials with respect to the above referenced matter. c. Copies of e-mails or other written communication transacted between the Kingston Police Department Chief . . . and Town Administrator . . . and/or other officers of Kingston Town government with respect to the above-referenced incident. The Town provided a response on April 19, 2022, including a fee estimate. Objecting to the fees, Mr. Conley petitioned this office and this appeal, SPR22/1288, was opened as a result. 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). 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).

Gloria Mitchell SPR22/1288 Page 3 June 16, 2022 The Town’s April 19th fee estimate In its April 19, 2022 response, the Town explained that “[t]he amended version of your request would reduce the amount of the [April 6th] estimate by approximately two hours reducing the total estimate amount to $450.00.” In its April 6, 2022 fee estimate to the original request on March 28th, the Town posited that “[a]s [it] is a municipality with a population less than twenty thousand (20,000) people, a fee will be assessed for the costs associated with time spent searching for, compiling, segregating, reproducing and redacting the requested records as required by law. See G.L. c. 66 §10(d)(iii). Based on the Town’s good faith estimate, a $500.00 fee will be required which is based on an estimated time of 20 hours at twenty-five dollars ($25.00) an hour to complete your request(s).” In the Town’s revised April 19th fee estimate, it appears the Town is assessing a fee for 18 hours to search for, compile, segregate, reproduce and redact the requested records. However, it is unclear why the Town requires that amount to time to complete these tasks. The Town must provide additional information explaining why the estimated amount of time is required and how many hours it is allocating to searching, compiling, segregating, reproducing and redacting the responsive records. Also, although the Town claims that it is assessing a fee for redactions required by law, it is unclear how redaction is required by law in this matter. For example, it is not clear what type of information is contained in the responsive records, and which statutes, if any, require redaction. Please note that under the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). I am not aware that the Town has submitted a petition under G. L. c. 66, § 10(d)(iv). As such, I find the Town must provide information about whether the responsive records contain information that is required by law to be segregated or redacted, as well as the applicable statutes, if any. The Regulations provide that in cases where necessary to reproduce the requested records, a records access officer may charge a fee to search for, compile, segregate, redact or reproduce a record requested based on the hourly rate of the lowest paid employee who is capable of performing the task. G. L. c. 66, § 10(d); see also 950 C.M.R. 32.07(2). Although the ----- Town indicates that it would charge an hourly rate of $25, it is unclear whether the Town has used the hourly rate of the lowest paid employee capable of performing the task. See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.07(2)(i). The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Mr. Conley with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations

Gloria Mitchell SPR22/1288 Page 4 June 16, 2022 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: James Conley