Yahima Perez v. Springfield, City of - Office of the City Clerk (SPR 20221294)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 8, 2022 SPR22/1294 Steven Roche, Esq. Associate City Solicitor Springfield Law Department 36 Court Street, Room 210 Springfield, MA 01103 Dear Attorney Roche: On June 2, 2022, this office received your petition on behalf of the City of Springfield (City) requesting permission to charge for time spent segregating or redacting responsive records as well as a waiver of statutory limits on fees that may be assessed in responding to a public records request. G. L. c. 66, § 10(d)(iv). As required by law, the City furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On May 25, 2022, Yahima Perez requested a “Police - Body Worn Camera Video.” Petitions 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). 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 or to charge in excess of $25 an hour for the provision of public 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 the request is not 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 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

Steven Roche, Esq. SPR22/1294 Page 2 June 8, 2022 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 (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 Petition In its June 2nd petition, the City “…respectfully requests a waiver of the statutory limits to fees assessed to segregate and/or redact public records.” In its response to the requestor, the City notes that “[t]here were redactions made to the videos, pursuant to M.G.L. c.4, §7 (26)(c), also known as the ‘Privacy Exemption’… The final release consists of BWC video footage from two (2) officers that responded to the incident.” The City contends that “…redactions were made in order to protect the personal privacy of individuals, both related and unrelated to the incident, who appear in the video. Removed/blurred from the videos were the faces of bystanders who had minimal or no involvement in the captured incident and the license plates of vehicles visible at the scene of the incident that were unrelated.” In its fee estimate, the City seeks to charge the BWC Analyst’s hourly rate of $30.60, the BWC Supervisor’s hourly rate of $47.00, and the BWC Legal Advisor’s hourly rate of $41.59. The City notes that “…the actual cost to perform this work and produce the records is $250.14”

Steven Roche, Esq. SPR22/1294 Page 3 June 8, 2022 Although the City states, “[t]here were redactions made to the videos, pursuant to M.G.L. c.4, §7 (26)(c), also known as the ‘Privacy Exemption”, it is unclear how the redacted faces of bystanders and the license plates of vehicles relate to Exemption (c). Conclusion Accordingly, I find the City has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Please note, however, this does not preclude the City from charging for segregation and redaction that is required by law at the hourly rates of the BWC Analyst, Supervisor, and Legal Advisor. Sincerely, Rebecca S. Murray Supervisor of Records cc: Yahima Perez Marvenia Frazier-Shubrick