Stanley Mazurczyk v. Chelmsford, Town of - Police Department (SPR 20230908)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 11, 2023 SPR23/0908 Alexandra Hayden Records Access Officer Chelmsford Police Department 2 Olde North Road Chelmsford, MA 01824 Dear Ms. Hayden: On May 4, 2023, this office received your petition on behalf of the Chelmsford Police Department (Department) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, the Department furnished a copy of this petition to the requestor. Id. On May 3, 2023, Stanley Mazurczyk requested the “complete demographic information of all sworn officers [the] Department employs.” 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, § 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

Alexandra Hayden SPR23/0908 Page 2 May 11, 2023 10(d)(iv). It is my determination that the request is not for a commercial purpose. 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 May 4th petition, the Department requests “permission to charge Mr. Mazurczyk a fee for the responsive documents.” The Department argues the following in support of its request to charge for segregation and redaction under Exemptions (c), (f), and (n): Exemption (c): [A]pplies as the content contained in the request is exempt information from being a public record… (i.e. personal cell…numbers). This information would directly violate exemption [(c)] based on privacy thus being redacted. Exemption (f): …The information in this request is complex in nature and will need to be carefully reviewed and approved before dissemination to ensure it does not compromise investigative efforts. Furthermore, any demographic information of an officer (i.e. race, eye color, etc.) could deter any future police investigation such as "plain clothes" investigation or "undercover" work by departmental employees as their identities would then be known or identifiable.

Alexandra Hayden SPR23/0908 Page 3 May 11, 2023 Exemption (n): …As previously stated, the information in this request is complex in nature. It will need to be carefully reviewed, assessed, and approved before dissemination by multiple people to ensure it does not compromise investigative efforts and future police efforts. (i.e. portable radio numbers and computer numbers used for internal log-in to closed police software) this information is not readily available to the public nor is necessary for the public to view and if disseminated has the potential for internal and closed police software used by the [Department] to be compromised thus compromising past, current, or future sensitive documents and reports. 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, it is my determination that given the nature of the requested records and the explanation in its petition, the Department is permitted to charge for time spent segregating and redacting the requested records. I encourage the parties to communicate further to enable the Department to provide records in an efficient and affordable manner. See G. L. c. 66, § 10(b)(vii). When preparing a fee estimate for the provision of the requested records, the Department is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary and how the redactions are required by law. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Department must provide Mr. Mazurczyk within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Mazurczyk may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Mr. Mazurczyk 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: Stanley Mazurczyk