Roshni Patel v. Springfield, City of - Police Department (SPR 20221816)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 9, 2022 SPR22/1816 Stephen G. Roche, Esq. Associate City Solicitor Springfield Law Department 36 Court Street, Room 210 Springfield, MA 01103 Dear Attorney Roche: On August 4, 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 the request. G. L. c. 66, § 10(d)(iv). As required by law, the City furnished a copy of this petition to the requestor, Attorney Roshni Patel of Brand & Tapply, LLC. G. L. c. 66, § 10(c). On July 28, 2022, Attorney Patel requested “…any video, dash, and body camera footage related to the response and assistance of a motor vehicle accident which occurred on May 9, 2022, on Armory Street, Springfield, MA.” 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 (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. 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

Stephen G. Roche, Esq. SPR22/1816 Page 2 August 9, 2022 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) 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 August 4th petition, the City “….respectfully requests a waiver of the statutory limits to fees assessed to segregate and/or redact public records.” The City contends that “[r]esponding to requests for Body-Worn Camera (BWC) video(s) is very labor intensive. It requires locating the requested video(s), reviewing each video at least twice to determine if redactions are required pursuant to M.G.L. Chapter 4, Section 7(26), and then making necessary

Stephen G. Roche, Esq. SPR22/1816 Page 3 August 9, 2022 edits to the BWC footage. The BWC Unit Supervisor locates the videos, if any, and then oversees the work of the BWC Redaction Analyst. Once the final video is ready, the BWC Legal Advisor meets with the Redaction Specialist to watch the footage.” In light of this, 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 records will be used for a ‘commercial purpose’…The requester is an attorney who specializes in representing insurance companies. He is seeking records for a traffic accident.” 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 August 4th petition and the correspondence provided, it is my understanding that the request made by Attorney Patel does not meets the statutory definition of “commercial purpose” within the Public Records Law. Conclusion Accordingly, I find the City has not met its burden to explain how the response could not be prudently completed without redaction, segregation, or by assessing a fee in excess of $25.00. Please note, however, this does not preclude the City from charging for segregation and redaction that is required by law. When preparing a fee estimate for the provision of the requested records, the City is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The City must provide a response to Attorney Patel within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Please note, the requestor has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10A(c).

Stephen G. Roche, Esq. SPR22/1816 Page 4 August 9, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Roshni Patel, Esq.