Kyle Stucker v. Dracut, Town of - Police Department (SPR 20221865)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 17, 2022 SPR22/1865 Chief Peter Bartlett Chief of Police Dracut Police Department 110 Loonhill Road Dracut, MA 01826 Dear Chief Bartlett: On August 12, 2022, this office received your petition on behalf of the Dracut Police Department (Department) seeking an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10 (d)(iv). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor. Id. In a letter dated August 1, 2022, Kyle Stucker requested the following: [1] Has your police department, office or agency ever employed, contracted or otherwise utilized any mental health clinicians while responding to calls for service? If so, please provide the names of the clinicians employed/used and provide any contracts related to their arrangement. [2] A copy of all departmental policies and standards related to mental health response and training. [3] A copy of your department’s de-escalation policy. [4] A spreadsheet of calls to service since January 2017 in which one of the aforementioned mental health clinicians was involved in your department’s response. Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine 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

Chief Peter Bartlett SPR22/1865 Page 2 August 17, 2022 (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) must provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Extension of Time to Produce Responsive Records In its August 12th petition, the Department “…requests an additional 20 business days to respond.” The Department states, “…the Dracut Police Department estimates that it will take approximately 20 hours to segregate and redact the responsive records. Currently, the employees of the department are extremely busy due to the COVID-19 pandemic and cannot devote this amount of hours within the regular time to respond to the request…Providing the Department with 20 additional business days to respond will not chill public transparency.” I find in light of the need to collect and segregate the request, as well as the capacity of the Department to produce the request without an extension, the Department has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(ii). The Department is granted an extension of 20 business days. 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

Chief Peter Bartlett SPR22/1865 Page 3 August 17, 2022 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) Current Petition In its August 12th petition, the Department states “…it is likely that records of mental health clinician referral calls and responses will contain information that must or should be

Chief Peter Bartlett SPR22/1865 Page 4 August 17, 2022 redacted, in full or in part, because they are subject to one or more of the exemptions to the Public Records Law. Exemption (c), the privacy exemption: This exemption protects medical files or information relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy… In addition, given the nature of the request, it is not information concerning the individuals whose situation may have warranted a clinician’s intervention that is of interest to the requester, but rather the Department’s interaction with clinicians when faced with those in crisis. Therefore, if records of calls and responses by mental health clinicians are sought by Mr. Stucker, the records will have to be reviewed to ensure that the privacy of any named individuals that may be included in the records are protected.” With respect to fees, the Department “…is seeking approval to charge $25 per hour to segregate and redact records regarding mental health clinicians’ referral calls and responses, pursuant to 950 CMR 32.06(4)(g) and (h). The Department estimates that it will take it approximately 3 minutes, on average, to review and redact each responsive record. At 3 minutes per record, it will take approximately 20 hours to complete this review. Because the Town of Dracut’s population is more than 20,000 individuals, it cannot assess a fee for the first two hours of time. Therefore, the total cost of responding to this request is therefore estimated to be $500.00.” I find the Department has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition, the Department is permitted to charge for time spent segregating and redacting the requested records. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the Department may assess a charge for the segregation and redaction of such exempt material. With respect to time, I find the Department has established good cause to permit an extension of 20 business day. G. L. c. 66, § 10(c)(i)-(ii). This office encourages the parties to communicate further to enable the Department to provide records in an efficient and affordable manner. 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, § 10(d)(iv)(4),10A(c).

Chief Peter Bartlett SPR22/1865 Page 5 August 17, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Kyle Stucker Jayne Boissonneault