Melissa Lewis v. Dracut, Town of - Police Department (SPR 20230449)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 20, 2023 SPR23/0449 Peter Bartlett Chief of Police Dracut Police Department 110 Loon Hill Road Dracut, MA 01826 Dear Chief Bartlett: I have received the petition of Melissa Lewis appealing the response of the Dracut Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 15, 2023, Ms. 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. Previous Petition This request was the subject of a previous petition from the Department. See SPR23/0387 Determination of the Supervisor of Records (March 6, 2023). In my March 6th determination, 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

Chief Peter Bartlett SPR23/0449 Page 2 March 20, 2023 found the Department may assess a fee for the segregation and redaction of responsive records, and granted an extension of thirty business days to provide records. Concurrent with its petition, the Department provided a fee estimate to Ms. Lewis on February 27, 2023. Objecting to the fees, Ms. Lewis appealed, and this case was opened as a result. Status of the Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Lewis’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response, a written good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Fee Estimates - 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 2 (two) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the

Chief Peter Bartlett SPR23/0449 Page 3 March 20, 2023 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). The Department’s February 27th Fee Estimate In its February 27, 2023 fee estimate, the Department provides the following information: [T]here are approximately 3,547 digital records concerning [the first individual] and approximately 39,822 digital records concerning [the second individual] that are potentially responsive to the request.... In addition, there are non-digitized records of citizen complaints and open criminal investigations that will need to be reviewed. The Department explains that it will need to redact responsive records under Exemption (a) because “some of the records may contain information protected from release under the Criminal Offender Record Information Act (CORI), G.L. c. 6, § 167.” Additionally, as approved in the March 6th determination, the Department states that it will need to make redactions under Exemptions (c) and (f) of the Public Records Law. The Department indicates it has estimated its “average time to segregate and redact to 1.5 minutes per record,” and that it will charge a rate of no more than $25 per hour. The Department goes on to explain the following concerning the amount of time required and the total cost: At 1.5 minutes per record, it will take approximately 1000 hours to complete this review. Because the Town of Dracut’s population is more than 20,000 individuals, it cannot assess a fee for the first two hours of time. The estimated fee therefore is approximately $25,000. The Department recognizes that that is an unreasonable fee to charge for a request that is not for commercial purposes. Therefore, the Department will not charge more than $2,000.00 to segregate and redact. In light of the Department’s response, I find the Department has met its burden to explain how it has provided a reasonable fee estimate for the segregation and redaction of records responsive to this request. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record).

Chief Peter Bartlett SPR23/0449 Page 4 March 20, 2023 This office encourages Ms. Lewis and the Department to communicate in order to facilitate producing records efficiently and affordably. Ms. Lewis may wish to narrow the parameters or include applicable time periods or 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). Please be advised the Department received approval to charge for segregation and redaction, to the extent the responsive records contain the exempt information. See SPR23/0387 Determination of the Supervisor of Records (March 6, 2023) Conclusion Accordingly, I will consider this administrative appeal closed. If issues remain after further communication, Ms. Lewis may file an appeal. Any revision to the request would result in the requirement to issue a revised fee estimate. Sincerely, Manza Arthur Supervisor of Records cc: Melissa Lewis