Melissa Lewis v. Dracut, Town of - Police Department (SPR 20230387)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 6, 2023 SPR23/0387 Peter Bartlett Chief of Police Dracut Police Department 110 Loon Hill Road Dracut, MA 01826 Dear Chief Bartlett: On February 27, 2023, this office received your petition on behalf of the Dracut Police Department (Department) seeking an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding the Department furnished a copy of the petition to the requestor. Id. On February 15, 2023, Melissa Lewis requested: [1] Any and all documentation and records, including but not limited to letters, emails, text message(s), calls [sic] logs, recording of calls, physical records, digital records, citizens’ complaints, incident reports, police reports, body camera video footage, [p]olice vehicle camera/dashcam footage, audio recordings, video recordings, reports, notes, and other correspondence of any kind including but not limited to between and among Dracut Police Department related to [an identified individual] by name, initials, or by reference in any way directly from the period of 07/01/21 to the date of production…. [2] Any and all documentation and records, including but not limited to letters, emails, text message(s), calls [sic] logs, recording of calls, physical records, digital records, citizens’ complaints, incident reports, police reports, body camera video footage, [p]olice vehicle camera/dashcam footage, audio recordings, video recordings, reports, notes, and other correspondence of any kind including but not limited to between and among Dracut Police Department related to [an identified individual] by name, initials, or by reference in any way directly or indirectly from the period of 01/01/18 to the date of production. In a letter to this office provided on March 6, 2023, Ms. Lewis objected to the Department’s petition seeking an extension of time to produce records and permission to charge 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 Peter Bartlett SPR23/0387 Page 2 March 6, 2023 for time spent segregating or redacting responsive records. Ms. Lewis argued that “[i]t is in the public interest that these records be released without further delay and without redactions.” Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) must provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Current Petition In its February 27th petition, the Department states: The Department has determined that there are approximately 3,547 digital records concerning [a named individual] and approximately 39,822 digital records concerning [a named individual] that are potentially responsive to the request, although many of the records concerning [a named individual] are likely not responsive given his work as a contractor. In addition, there are non-digitized records of citizen complaints and open criminal investigations that will need to be reviewed….

Chief Peter Bartlett SPR23/0387 Page 3 March 6, 2023 Here, the Dracut Police Department estimates that it will take approximately 1000 hours to segregate and redact the responsive records. It recognizes that this is an extraordinary amount of time but the potential need to keep information out of the public realm, given that the request is for police records and there are known open criminal investigations responsive to the request, dictate that the maximum of 30 additional business days be extended to the Department. Providing the Department with 30 additional business days to respond will not chill public transparency and will protect the strong public interest in protecting the integrity of police operations. I find the Department has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the Department an extension of 30 business days to furnish copies of records responsive to Ms. Lewis’ request. See G. L. c. 66, § 10(c). Petition to Assess Fees 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 (Supervisor) 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). 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 an agency’s petition to allow the agency to charge for time spent segregating or redacting 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 this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the agency 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; 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. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g).

Chief Peter Bartlett SPR23/0387 Page 4 March 6, 2023 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). 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). Current Petition In its February 27th petition, the Department asserts: Notably, portions of the requested records may be protected under Exemption (a), which applies to records that are specifically or by necessary implication exempted from disclosure by statute. In this case, some of the records may contain information protected from release under the Criminal Offender Record Information Act (CORI), G.L. c. 6, § 167 et seq. Additionally, even if a record does not fall under the protections of CORI, it would contain information protected from release under one of the other exemptions to the Public Records Law. Below is an example of some of the exemptions that may apply:  Exemption (c), the privacy exemption….These records will have to be reviewed to ensure that the privacy of any named individuals that may be included in the records are protected.  Exemption (f), the investigatory exemption….As there are open criminal investigations responsive to Ms. Lewis’s requests, the records will have to be reviewed to ensure compliance with this exemption.

Chief Peter Bartlett SPR23/0387 Page 5 March 6, 2023  It is possible that other statutorily enumerated exemptions to the Public Records Law may apply…. In light of the Department’s petition, I find the Department has met its burden to explain how, given the nature of the responsive records, the requests could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the Department may assess a fee for the segregation and redaction of such exempt material. Conclusion Accordingly, I find the Department has met its burden to explain how the requests could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the Department may assess a fee for segregation and redaction. Further, I encourage the parties to communicate to enable the Department to provide records in an efficient and affordable manner. Additionally, I grant the Department an extension of 30 business days to furnish copies of records responsive to Ms. Lewis’ request. See G. L. c. 66, § 10(c). Please note, the requestor has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Melissa Lewis