Douglas Smith v. New Bedford, City of - Police Department (SPR 20221768)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 12, 2022 SPR22/1768 Officer Michael Boswell Records Access Officer New Bedford Police Department 871 Rockdale Ave New Bedford, MA 02740 Dear Officer Boswell: I have received the petition of Douglas Smith, of the National Lawyers Guild Mass Chapter, appealing the response of the New Bedford Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 18, 2022, Mr. Smith requested records “[r]elating to Complaints, Inquiries or Policies Referencing Police Badges, Name Tags, or Labels or City-Issued Police Identification Cards[.]” On May 3, 2022, the Department responded. Unsatisfied with the Department’s response, Mr. Smith petitioned this office and this appeal, SPR22/1768, 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 950 C.M.R. 32.06(3); see also Dist. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). If there are any fees associated with a response a written, good faith estimate must be 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

Officer Michael Boswell SPR22/1768 Page 2 August 12, 2022 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. 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). Current Appeal In his appeal, Mr. Smith asserts: Although NBPD’s response came 11 days after receipt of NLG-MA’s records request, and NBPD neither filed a fee petition with [y]our office nor tried to work out a more efficient search with the requester, NBPD’s responses raises important and recurring resistance to public records requests on matters of urgent public interests. 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).” Where Mr. Smith submitted a public records request on April 18, 2022 and the Department provided a response on May 3, 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. Smith’s request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request.

Officer Michael Boswell SPR22/1768 Page 3 August 12, 2022 Conclusion Accordingly, the Department is ordered to provide Mr. Smith 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, Manza Arthur Supervisor of Records cc: Douglas Smith