Samuel Sinyangwe v. Springfield, City of (SPR 20221483)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 30, 2022 SPR22/1483 Steven G. Roche, Esq. Associate City Solicitor Springfield Law Department 36 Court Street, Room 210 Springfield, MA 01103 Dear Attorney Roche: On June 27, 2022, this office received your petition on behalf of the City of Springfield (City) seeking 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. Id. On June 13, 2022, Samuel Sinyangwe submitted a request seeking: 1. The total number of use of force incidents, separated by type of force and year used in 2021 (for example, information that specifies the number of taser incidents in 2021, baton incidents in 2021, etc.) 2. The total number of civilian complaints alleging any form of law enforcement misconduct that were reported and the total number sustained in 2021. 3. The total number of civilian complaints alleging law enforcement use of excessive force that were reported and the total number sustained in 2021. 4. The total number of civilian complaints alleging biased policing or racial profiling that were reported and the total number sustained in 2021. 5. The total number of civilian complaints alleging criminal conduct that were reported and the total number sustained in 2021. 6. The total number of officer involved shootings in 2021, both fatal and non-fatal. Petitions to Assess Fees 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 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. SPR22/1483 Page 2 June 30, 2022 (Supervisor) 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). 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. 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 this request was not made 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 such that the request could not have been prudently completed without the redaction or segregation; 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. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). 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)

Steven Roche, Esq. SPR22/1483 Page 3 June 30, 2022 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). Current Petition In its June 27th petition, the City “…respectfully requests a waiver of the statutory limits to fees assessed to segregate and/or redact public records with regard to the above-referenced public records request.” Specifically, the City seeks to charge the Associate City Solicitor’s hourly rate of $41.59. The City indicated that “[t]his request has required the work of several individuals employed by the City of Springfield. It is a massive request requiring substantial review and redaction. It must also be reviewed by an attorney before records are released to ensure the safety of privacy of victims and witnesses.” In addition, the City’s estimated cost to perform this work and produce the records is $4,827.90. The City states, “[p]lease note that the requester maintains a website…and solicits donations. This is a commercial use of the City’s records and he should pay the costs of the City’s work to respond.” The term “commercial purpose” as used in this section shall mean: the sale or resale of any portion of the public record or the use of information from the public record to advance the requester’s strategic business interests in a manner that the requester can reasonably expect to make a profit, and shall not include gathering or reporting news or gathering information to promote citizen oversight or further the understanding of the operation or activities of government or for academic, scientific, journalistic or public research or education. G. L. c. 66, § 10(d)(ix). Based on the City’s June 27th petition, it is my understanding that the request made by Mr. Sinyangwe does not meets the statutory definition of “commercial purpose” within the Public Records Law. See G. L. c. 66, § l0(d)(ix); see also SPR20/2599 Determination of the ----- Supervisor of Records (January 5, 2021). Conclusion Given the public interest served by limiting the cost of public access to the requested records, I am unable to grant permission to charge for time spent segregating or redacting responsive records or to charge in excess of $25 an hour. Please note, this does not preclude the

Steven Roche, Esq. SPR22/1483 Page 4 June 30, 2022 City from charging for segregation and redaction that is required by law at $25.00 per hour. Accordingly, I will consider this matter closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Samuel Sinyangwe