Erin Stewart v. New Bedford, City of - Police Department (SPR 20221856)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 24, 2022 SPR22/1856 Officer Michael Boswell Record Access Officer New Bedford Police Department 871 Rockdale Avenue New Bedford, MA 02740 Dear Officer Boswell: I have received the petition of Erin Stewart, of Citizens for Juvenile Justice, appealing the response of the New Bedford Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 12, 2022, Ms. Stewart requested, “[a]n extract of your records management system or database that includes each school-related arrest and each referral to law enforcement conducted during the 2018-2019, 2019-2020, 2020-2021, and 2021- 2022 school year (up until the day the records are produced). Specifically, we request an extract of the database to include” twelve identified areas. The Department responded on May 16, 2022 and May 31, 2022. Unsatisfied with the Department’s responses, Ms. Stewart petitioned this office and this appeal, SPR22/1856, was opened as a result. Fees -Municipalities If there are any fees associated with a response a written, good faith estimate must be · 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. 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 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 SPR22/1856 Page 2 August 24, 2022 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 how if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). The Department’s May 31st Fee Estimate In its May 31, 2022 fee estimate, the Department provided a fee estimate of $184,473.00 and stated, “… the Department has conducted an initial search of its records management system and found there to be 88,571 documents total that pose to be potentially responsive to your request for records; of these 88,571 documents, 53,516 of them are incident reports, 1,848 of them are field interview reports, 18,734 of them are citations, 12,547 of them are warrant applications, and 1,926 of them are arrest reports.” The Department calculated the fee as follows: Average of 5 minutes to review, copy, redact and reproduce (88,571 documents) = 442,855 minutes (442,855 minutes) (1 hour/60 minutes) = 7,380.92 hours The City has a population of more than 20,000 individuals. As such, the Department will be seeking payment for 7,378.92 hours of work [(7,380.92 hours) - (2 hours at no charge)]. The Department asserted, “[t]he lowest paid employee capable of reviewing the reports for responsiveness is the Management Analyst, whose hourly rate is $32.55. However, the Department will charge you only $25.00 per hour for reviewing the materials, as that is the maximum hourly rate allowable per the Public Records Law. The Department is, therefore, seeking payment of (7,378.92 hours) ($25.00/hour) = $184,473.00.” Although the Department has estimated that the process of copying, reviewing, redacting, and preparing responsive documents for production will take 7,378.92 hours less 2 hours of employee time, it is unclear how the Department requires this many hours to produce responsive records. It is not clear from the Department’s estimate how many hours are allocated to search, and how many hours are allocated for segregation, and redaction of the records. Further, although the Department explained that redactions are necessary based upon identified statutes, it is unclear whether the Department is charging for exemptions that are not required by law. See G. L. c. 66, § l0(d)(iii) (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)). In addition, it is not clear what tasks are involved to prepare responsive records for production. As such, the Department must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable).

Officer Michael Boswell SPR22/1856 Page 3 August 24, 2022 For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the $184,473.00 fee assessed in its May 31st estimate is consistent with G. L. c. 66, § 10(d). I encourage Ms. Stewart and the Department to communicate further in order to facilitate producing records efficiently and affordably. Ms. Stewart may wish to include applicable time periods or additional factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Department must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Department is ordered to provide Ms. Stewart with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: Erin Stewart Nicholas DeMarco, Esq.