Jeannette Hinkle v. Barnstable, Town of - Police Department (SPR 20221893)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 22, 2022 SPR22/1893 Danielle L. Paradis Records/Property Supervisor Barnstable Police Department 1200 Phinneys Lane Hyannis, MA 02601 Dear Ms. Paradis: On August 15, 2022, this office received your petition on behalf of the Barnstable Police Department (Department) seeking a waiver of statutory limits on fees that may be assessed in responding to a public records request. 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, Jeannette Hinkle, of the Cape Cod Times, requested all complaints, investigatory materials, and disciplinary records concerning an identified person during their employment at the Barnstable Police Department. Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). 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 or to charge in excess of $25 an hour for the provision of public 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 the request is not for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by 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

Danielle L. Paradis SPR22/1893 Page 2 August 22, 2022 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 15th petition, the Department states, “[p]ursuant to Section 10(d)(iv) of Chapter 66 of the General Laws, and 950 CMR 32.06(4), we are requesting permission to charge the following fees associated with the search and segregation of the requested records.” The Department notes that “[t]he requested records include, but are not limited to, professional standards investigations. In order to ensure that the individual rights of employees who are the subject of a professional standards investigation are protected, all materials relevant to that investigation shall be kept strictly confidential and in a secured area.” The Department “…intends to withhold one professional standards investigation report pursuant to exemption (c) of G.L. c. 4, sec. 7 (26). Exemption (c) allows personnel records to be withheld if the individual’s privacy rights outweigh those of the public. We acknowledge that exemption (c) has been amended and can no longer be used to withhold records that relate to law enforcement misconduct investigations. However, as this particular report relates to an ongoing personnel matter, we believe that the individual’s privacy rights do outweigh those of the public, at least temporarily until such time as the matter is resolved, and, therefore, it is premature to publicly release the record at this time. Once this matter has been resolved through the imposition of

Danielle L. Paradis SPR22/1893 Page 3 August 22, 2022 appropriate discipline or otherwise, we understand that the investigation report record will be subject to disclosure. To the extent that exemption (f) applies, we cite that as well as the basis for withholding the record until such time as the personnel matter to which it relates has been resolved.” With respect to fees, the Department notes that “[o]nly select sworn Barnstable Police Department members have the ability to access the files secured in the Professional Standards Office. The lowest paid employee who has the necessary skill and access to the search, identify, copy and refile these records is a Lieutenant assigned to the Professional Standards Office. The Lieutenant’s normal hourly rate is $81.28.” The Department states “[t]he total number of hours that we intend to charge for this request are: 5 with the first two (2) hours waived, to equal 3 hours at a rate of $81.28 per hour. As a result, we are petitioning the Supervisor to permit us to charge a fee of $243.84.” Conclusion Given the public interest served by limiting the cost of public access to the requested records, permission to charge for time spent segregating or redacting responsive records cannot be granted. However, this does not preclude the Department from charging for segregation and redaction that is required by law at an hourly rate of $25.00. When preparing a fee estimate for the provision of the requested records, the Department is advised to provide a detailed explanation to the requestor detailing why the amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Department must provide a response to Ms. Hinkle within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Hinkle may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jeannette Hinkle