John Lamere v. Dartmouth, Town of - Police Department (SPR 20230727)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 20, 2023 SPR23/0727 Stacey Pelland Administrative Clerk Dartmouth Police Department 1390 Tucker Road Dartmouth, MA 02747 Dear Ms. Pelland: On April 12, 2023, this office received your petition on behalf of the Dartmouth Police Department (Department) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On April 6, 2023, John Lamere requested “all crash reports between 2/1/2023 to 3/31/2023.” Petition to Assess Fees – Municipalities 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. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). In this case, it is unclear whether this request was made 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

Stacey Pelland SPR23/0727 Page 2 April 20, 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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 petition, the Department states that it possesses “82 (eighty-two) crash reports between 2/1/2023 and 3/31/2023” and “will be required to make certain redactions to those records in accordance with the Public Records Law.” In support of its petition, the Department provides the following information: Exemption (c): Dates of birth, license number(s), medical information and telephone number(s)... The records requested contain information which, if disclosed, would constitute an unwarranted invasion of personal privacy. Such information contains intimate details and the privacy interests involved outweigh the public interests in the disclosure of that information. Exemption (f): Witness information... The above requested records contain witness information; therefore, redactions are appropriate to preserve the anonymity of voluntary witnesses.

Stacey Pelland SPR23/0727 Page 3 April 20, 2023 Additionally, the Department notes that it intends to redact information pursuant to Exemption (a) and numerous statutes, including G. L. c. 58, § 276 (Criminal Offender Record Information), G. L. c. 90, § 22I (reports to the Registry of Motor Vehicles), and the Driver’s Privacy Protection Act. 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 request 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, to the extent the responsive records contain the exempt information described above, the Department may assess a fee for segregation and redaction. This office encourages the Department and Mr. Lamere to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification to 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). Any subsequent fee estimate from the Department must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Mr. Lamere 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, §§ 10(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: John Lamere