Genevieve DiNatale v. Framingham, City of - City Clerk (SPR 20230835)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 10, 2023 SPR23/0835 Kristin Sullivan Records Manager Framingham Police Department 1 William H. Welch Way Framingham, MA 01702 Dear Ms. Sullivan: I have received the petition of Genevieve DiNatale, of News Link Live, appealing the response of the Framingham Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 2, 2023, Ms. DiNatale requested the following: [A]n electronic copy of all the arrests made by the police department from December 1, 2022 to January 30, 2023. In the report, please include the name(s) of the individual(s) arrested as well as the responding officer(s), charge(s), age(s), address(es), date(s), and time(s) of the arrests. Following further correspondence, on March 31, 2023, Ms. DiNatale clarified that she was seeking “the actual reports.” The Department responded on April 3, 2023, providing a fee estimate. Objecting to the fees, Ms. DiNatale appealed, and this case was opened as a result. 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 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

Kristin Sullivan SPR23/0835 Page 2 May 10, 2023 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); -se-e -a-ls-o 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 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 April 3rd Fee Estimate In its April 3, 2023 fee estimate, the Department states the following: [T]he City will need to spend considerable time as required by law in producing these records. There are 107 reports total and of the ones able to be released approximately 70 to redact. The City estimates that it will take 15 minutes to redact each report as required by law. As a result, the City estimates that it will take approximately 17.5 hours to produce these records. In accordance with the law, the City will not charge ... for the first two hours of employee time, at the rate of $25/hour (lower than the hourly wage of the lowest paid employee capable of performing such work). Based on the Department’s response, it is unclear why the Department requires 15 minutes per report to review and redact each report. The Department must provide further explanation regarding the contents of the records and why it would take 15 minutes to review

Kristin Sullivan SPR23/0835 Page 3 May 10, 2023 each one. Additionally, in accordance with the Public Records Law, 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 is advised that information that is “required by law” to be segregated or redacted is found in statutes that explicitly indicate that certain records or information are not public records. Some common examples are the Criminal Offender Record Information (CORI) Act (G. L. c. 6, § 167), and laws regarding the confidentiality of domestic violence records (G. L. c. 41, § 97D; G. L. c. 41, § 98F; G. L. c. 209A, § 8). These statutes operate through Exemption (a) of the Public Records Law. Segregation or redaction under the attorney-client privilege is also interpreted to be “required by law.” Accordingly, the Department must provide further explanation as to whether the redactions described in its estimate are required by law. Conclusion For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Accordingly, the Department is ordered to provide Ms. DiNatale with a response to her request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: Genevieve DiNatale