Rich Saltzberg v. Tisbury, Town of - Police Department (SPR 20221884)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 30, 2022 SPR22/1884 Chief Christopher Habekost Tisbury Police Department 32 Water Street P. O. Box 426 Vineyard Haven, MA 02568-0606 Dear Chief Habekost: I have received the petition of Rich Saltzberg, of the Martha’s Vineyard Times, appealing the response of the Tisbury Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 14, 2022, Mr. Saltzberg requested “. . . any and all internal or external investigation reports on the [identified file] … including any investigations of [named] Officer …from the Department.” On August 15, 2022, the Department provided a response, including a January 24, 2022 fee estimate related to an identical request, which was the subject of previous appeals. See SPR21/2332 Determination of the Supervisor of Records (September 23, 2021) and SPR21/3346 Determination of the Supervisor of Records (January 7, 2022). Unsatisfied with the Department’s response, Mr. Saltzberg petitioned this office and this appeal, SPR22/1884, was opened as a result. Fee estimates – 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 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, 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 Christopher Habekost SPR22/1884 Page 2 August 30, 2022 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). 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). The Department’s January 24th fee estimate The Department’s January 24, 2022 fee estimate was provided in its prior appeal (See SPR22/3346). The fee estimate in the prior appeal was $137.50. The Department provided a current fee estimate of $262.50. The Department explained, “[i]n light of the above referenced Determination, the Town performed a further substantive review of its records and has enclosed an email containing photographs of the documents responsive to Mr. Saltzberg’s broad reaching request. The Town presently anticipates that it has nearly 5,000 documents responsive to his request, with approximately 3,000 documents containing materials that are exempt from the Public Records Law pursuant to the attorney-client privilege and Exemption (a) …” The Department provided the following in support of its fee estimate. Comprehensive search for responsive records at Town Hall, the Police Department, and Various Offices: 1 hours @ $25/hour = $25.00 • Segregate and review responsive records for A-C privilege and MCAD Investigatory files: 5.5 hours @ $25/hour = $137.50 • Town Counsel time to conduct privilege review, prepare a privilege log and segregate any information protected by the attorney-client privilege (3,000+ documents): 4 hours @ 25.00/hour = $100.00 Total = $262.50 The Department advised, “. . . the lowest paid employee capable of performing these searches is paid more than $25/hour, and accordingly, you will be charged $25/hour. Moreover, because the Town has fewer than 20,000 residents, pursuant to the last Decennial U.S. Census, you will be charged for all work associated with this request.” The Department also explained, “… the wide-spread nature of this highly publicized affair spanned across numerous town departments and as such the files are located in various places within the Town.” The Department indicates that it will take “1 hour to search and compile records from 3 locations @$25 per hour[.]” Please be advised that the Department cannot charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § l0(a); see G. L. c. 66, § l2; see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). The Department must clarify the tasks required to perform this search and compilation.

Chief Christopher Habekost SPR22/1884 Page 3 August 30, 2022 In its fee estimate, the Department states that it is assessing a fee of 4 hours for “Town Counsel time to conduct privilege review, prepare a privilege log and segregate any information protected by the attorney-client privilege (3,000+ documents) . . .” Based on the Department response, I find it must provide additional information explaining how this task, constitutes time to search for, compile, segregate, redact, or reproduce records and how it is chargeable under G. L. c. 66, § 10 d)(iii). In his appeal petition, Mr. Saltzberg states: In its letter, the Department has emphasized the volume of responsive documents (“nearly 5,000 documents”). This is misleading. Then as now, the MVT request wasn’t as “broad reaching” as the Department’s letter suggests. MVT requests now and previously requested “reports”. MVT didn’t request supporting documents, exhibits, photography, logs, forms, transcripts, emails, memos, letters, etc. Reports are the summary and analysis of such things. We’ve only asked for reports. . . . As to MCAD material associated with this request, again, reports are the only documents sought. So called “Investigatory files,” whatever those may be, don’t sound responsive to this particular request. MCAD generates reports at the conclusion of its investigations. That would be what would be responsive. In light of the above, based on the Department’s response, which indicates that it “. . . presently anticipates that it has nearly 5,000 documents responsive to his request,” it is unclear if all the 5000 documents are responsive reports. Consequently, I encourage Mr. Saltzberg and the Department to communicate in order to facilitate producing records efficiently and affordably. 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 Mr. Saltzberg 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.

Chief Christopher Habekost SPR22/1884 Page 4 August 30, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Rich Saltzberg