Mary Bland v. Barnstable, Town of - Police Department (SPR 20230664)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 12, 2023 SPR23/0664 Danielle L. Paradis Records/Property Supervisor Barnstable Police Department 1200 Phinney’s Lane Hyannis, MA 02601 Dear Ms. Paradis: On April 5, 2023, this office received your petition on behalf of the Barnstable Police Department (Department) seeking permission to charge for time spent segregating or redacting responsive records and to charge in excess of the statutory fees in responding to a request. G. L. c. 66, § 10(d)(iv). As required by law, the Department furnished a copy of this petition to the requestor. Id. On March 31, 2023, the Department received a request dated March 23, 2023, from Mary Bland, in which Ms. Bland requested “recorded (turret tape) commencing at 2100hrs on Saturday June 8th, 2019 and ending at 0100hrs on Sunday June 9th 2019[.]” Petition 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. 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 SPR23/0664 Page 2 April 12, 2023 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 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 2 (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). Current Petition In its April 5th petition, the Department requests “permission to charge the following fees associated with the search and segregation of the requested records.” In support of its request, the Department explains that “[c]ertain redaction such as medical information, witness names, address and telephone numbers, juvenile information, and domestic violence reports shall be reviewed and redacted pursuant to [E]xemption (a) and [Exemption] (c)... and G.L. c. 93H.” The Department further states: The lowest paid employee who has the necessary skill to complete the search and segregation of these records is the Dispatch Supervisor. Alternatively, one Telecommunications Specialist also possesses the knowledge; however, the employee is paid at the same rate as the Dispatch Supervisor when performing this task. As no other employees are able to fulfill this request, we are petitioning to be allowed to increase the hourly fee from $25.00 to $40.69, which is the hourly rate of the Dispatch Supervisor.

Danielle L. Paradis SPR23/0664 Page 3 April 12, 2023 I find the Department has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). Further, I find in light of the information provided in the Department’s petition, the Department may assess a fee for time spent segregating and redacting responsive records at $40.69 per hour. Id. Conclusion Accordingly, I find the Department has met its burden to explain how the response could not be prudently completed without redaction or segregation. In light of the Department’s petition, I find the Department has met its burden to explain how the response could not be prudently completed without assessing a fee in excess of $25.00. To the extent the responsive records contain the exempt information as described above, the Department may assess a fee for segregation and redaction at $40.69 per hour. This office encourages Ms. Bland and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a 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 municipality to produce records sought more efficiently and affordably.) Please note, Ms. Bland 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. Sincerely, Manza Arthur Supervisor of Records cc: Mary Bland