Jeannette Hinkle v. Barnstable, Town of - Police Department (SPR 20221903)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 23, 2022 SPR22/1903 Danielle L. Paradis Records/Property Supervisor Barnstable Police Department 1200 Phinneys Lane Hyannis, MA 02601 Dear Ms. Paradis: On August 16, 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 2, 2022, Jeannette Hinkle, of the Cape Cod Times, requested numerous categories of records concerning the Department and Internal Affairs reports. 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 municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary 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 SPR22/1903 Page 2 August 23, 2022 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 16th 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 City states, “[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 (21-03-IA) pursuant to exemption (f) of G.L. c. 4, sec. 7 (26). Exemption (f) allows investigative officials to withhold materials that could compromise investigative efforts if disclosed. This particular investigation is currently ongoing and has not yet been completed. As such, it cannot be disclosed at this time since premature disclosure of the requested record, which is inextricably linked to such investigation, would, in the Department’s opinion, compromise such matters. In addition to protecting records of ongoing investigations, exemption (f) has been held to allow investigative officials to provide an assurance of confidentiality to persons so that they will speak openly about matters under investigation. For those reasons absent authorization or a court order to

Danielle L. Paradis SPR22/1903 Page 3 August 23, 2022 produce information obtained during the investigation, the names, addresses and identifying details of voluntary witnesses or complainants contained in the investigative reports may therefore be withheld from disclosure permanently. Where identifying details regarding voluntary witnesses or complainants are inextricably intertwined with other information in the responsive record, the responsive record will be withheld in its entirety.” 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 and segregation of these records is a Lieutenant assigned to the Professional Standards Office. The Lieutenant’s normal hourly rate is $81.28.” The Department notes, “[i]n order to comply with the request, it will take approximately 8 hours. This estimate assumes search time to locate, identify, review any video or audio files, copy as well as refile the requested records consisting of eight professional standards investigation reports. The total number of hours we intend to charge for this request are 8 with the first two (2) waived, to equal 6 hours at a rate of $81.28 per hour. As a result, this petition is to request permission to charge a fee of $487.68.” 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