Jesus Leyva v. Greenfield, City of - City Clerk (SPR 20222528)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 22, 2022 SPR22/2528 Gillian Halkett Records Clerk Greenfield Police Department 321 High Street Greenfield, MA 01301 Dear Ms. Halkett: I have received the petition of Jesus Leyva appealing the response of the Greenfield Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 29, 2022, Mr. Leyva requested “…the final investigative reports from all Greenfield Police Department internal affairs investigations, initiated or in process after January 1, 2012, until the present date, September 29, 2022.” Prior Appeal The requested records were the subject of a prior appeal. See SPR22/2422 Determination of the Supervisor of Records (November 7, 2022). In my November 7th determination, I found that the Department responded on October 31, 2022, further explaining the Department’s initial fee estimate. Objecting to the Department’s fee estimate, Mr. Leyva petitioned this office and this appeal, SPR22/2528, was opened as a result. Fee estimate – 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) 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 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

Gillian Halkett SPR22/2528 Page 2 November 22, 2022 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). The Department’s fee estimate and October 31st response In the Department’s initial October 12th fee estimate it stated the following: Search/Compile) $64.75/hour 7.5 hours $485.62 Compile and redaction $23.12/hour 36 hours $832.32 TOTAL ESTIMATED COST $1188.45 In the Department’s October 31, 2022, response it clarified its initial fee estimate stating, “[w]e estimated in good faith approximately 3 minutes per report for search and compile from the Supervisor to the Records Clerk, at an hourly rate of $64.75, (total time of 10.75 hrs and omitting the first 2.5hrs as required), and 10 minutes of search and redaction time (not knowing how many pages are contained per report) of approximately 215 reports at the Clerk’s hourly rate of $23.12 (approximately 36 hrs).” The Department stated that it would require 10.75 hours to search for responsive records. The Department also stated it would require 36 hours to compile and redact the requested records. However, it is unclear why the Department requires a total of 10.75 hours to search for records responsive to this request. The Department must clarify the specific tasks involved in the searching and compiling of the records. Also, it is uncertain how the Department requires 36 hours to compile and redact records. The Department is advised, 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)(ii); 950 C.M.R. 32.06(4). Based on the Department’s response, I find it must clarify if the redactions are required by law, and indicate the applicable statutes, if any. Further, the Department stated that it is assessing an hourly rate of $64.75 for 10.75 hours to search and compile records. Please be advised, 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). Based on the Department’s estimate, it is uncertain how it may assess a fee of more than $25 an hour to search and compile records responsive to this request. The Department must clarify and revise its fee estimate.

Gillian Halkett SPR22/2528 Page 3 November 22, 2022 Conclusion Accordingly, the Department is ordered to provide Mr. Leyva 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. Sincerely, Manza Arthur Supervisor of Records cc: Jesus Leyva