Mass Free Press v. Wareham, Town of - Police Department (SPR 20222313)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 28, 2022 SPR22/2313 Lieutenant Peter F. Flannery Wareham Police Department 2515 Cranberry Highway Wareham, MA 02571 Dear Lieutenant Flannery: I have received the petition of Mass Free Press appealing the fee estimate of the Wareham Police Department (Department) to its request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 5, 2022, Mass Free Press requested “… all incoming recorded calls made to the Wareham police station in 2020 and 2021. They are likely digital so just send them to this email … [and] …all officer complaints made by the people against all officers working in Wareham.” On May 9, 2022, Mass Free Press modified its request and stated, “[i]f you don’t have files about complaints then I want all disciplinary actions taken on all officers records.” Subsequently, Mass Free Press modified its request on September 9, 2022, to include approximately two years of log entries. Previous appeals The requested records were the subject of previous appeals. See SPR22/1970 Determination of the Supervisor of Records (August 31, 2022) and SPR22/2089 Determination of the Supervisor of Records (September 23, 2022). The Department responded on September 14, 2022. Unsatisfied with the response, Mass Free Press petitioned this office and this appeal, SPR22/2313, was opened as a result. 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). 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

Lieutenant Peter F. Flannery SPR22/2313 Page 2 October 28, 2022 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, 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 September 14th Response In its September 14, 2022 response, the Department provided a fee estimate of $75.00 and stated, “[t]wo years of log entries is about ninety thousand records. Compiling these records into PDF format will take approximately five hours. A good faith estimate is this will cost $75.00. This figure was compiled by multiplying three times $25.00 an hour which is less than the lowest paid person who would complete this job.” The Department further advised, “… two years of recorded phone calls is $24,630.64.” Current appeal In the appeal, the requestor advised, “[t]he $75.00 dollar fee as stated here. These records are able to be inspected and should be available at no cost.” As it appears the requestor is appealing only the $75.00 fee estimate, this determination will not address the $24,630.64 fee estimate. Although the Department has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 3 hours of employee time, it is unclear how the Department requires this many hours to produce responsive records. It is also not clear from the Department’s estimate how many hours are allocated to search, and how many hours are allocated for segregation and/or redaction of the records. 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). Additionally, I find the Department must provide information about whether the responsive records contain information that is required by law to be segregated and/or redacted, as well as the applicable statutes, if any. For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d).

Lieutenant Peter F. Flannery SPR22/2313 Page 3 October 28, 2022 I encourage Mass Free Press and the Department to communicate further in order to facilitate producing records efficiently and affordably. Mass Free Press may wish to include applicable time periods, 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 Mass Free Press 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: Mass Free Press