Jeff Raymond v. Erving, Town of (SPR 20230986)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 25, 2023 SPR23/0986 Bryan Smith Town Administrator Town of Erving 12 East Main Street Erving, MA 01344 Dear Mr. Smith: I have received the petition of Jeff Raymond appealing the response of the Town of Erving (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 10, 2023, Mr. Raymond requested “any responsive documents and/or communications concerning your municipality’s police department and its compliance with the Massachusetts Peace Officer Standards and Training (POST) Commission’s duties under Chapter 253 of the Acts of 2020 to create a ‘database listing complaints against police officers,’ as detailed below.” Specifically, Mr. Raymond requested: [1.] A copy of the document your police department sent to the POST Commission, likely sent between November 2021 and June of 2022, providing the information requested by the POST Commission for its “database listing complaints against police officers” planned for May of 2022…. [2.] Copies of any relevant responsive communications between a) your police department and/or your town officials and b) the POST Commission in regard to the database planned for May of 2022 as detailed above and/or compliance with the reporting for said database between the dates of July 1, 2021 and December 31, 2022, broadly construed…. [3.] Copies of any relevant responsive communications within or between a) your police department and b) your municipal administration in regard to this database and/or compliance with this mandate between the dates of July 1, 2021 and December 31, 2022, broadly construed…. [4.] Information concerning “complaints against police officers” issued in the calendar year 2022 and through March 31, 2023, preferably in the same format 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

Bryan Smith SPR23/0986 Page 2 May 25, 2023 used for the information sent to POST between November 2021 and June of 2022 for the earlier-mentioned database…. [5.] A copy of the document your police department sent to the POST Commission as sent to the POST Commission, likely sent between December 1, 2022 and April 9, 2023, to comply with the “2023 POST Commission Disciplinary Records Resubmission”…. [6.] Copies of any relevant responsive communications within or between a) your police department and b) your municipal administration in regard to this database and/or compliance with the “2023 POST Commission Disciplinary Records Resubmission” described above. On April 25, 2023, the Town responded and provided Mr. Raymond with a fee estimate. Unsatisfied with the Town’s response, Mr. Raymond petitioned this office and this appeal, SPR23/0986, 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 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 estimate – 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).

Bryan Smith SPR23/0986 Page 3 May 25, 2023 Municipalities may not assess a fee for the first (two) 2 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 Town’s April 25th Fee Estimate In its April 25, 2023 fee estimate, the Town estimates a total cost of $125. The Town asserts: An initial search indicates that numerous records, responsive to your request, are in the custody of the Town. In accordance with 950 CMR 32.07(2)(b), the Town provides the following initial good faith estimate of the cost to comply with your request: Time by the lowest-paid Town employees capable of searching for and compiling responsive records: IT Staff: 1 hour at $25.00 per hour, subtotal $25.00. Chief of Police 1 hour at $25.00 per hour, subtotal $25.00. Town Administrator: 3 hours at $25.00 per hour, subtotal $75.00. Grand total good faith estimate: $125.00. This estimate include the initial 2 hours of time devoted to complying with your request in accordance with 950 CMR 32.07(2)(m), as Erving’s population was under 20,000 (1,665) in the 2020 U.S. Census. Please note that all of the lowest- paid Town employees capable of searching for and compiling responsive records, referenced above, are paid at rates in excess of $25 per hour, and therefore this estimate is based upon the maximum rate of $25 per hour as required under the Public Records Law. Current Appeal In his appeal, Mr. Raymond argues that “[i]t is unlikely that there are ‘numerous records’ related to the POST records….” Further, Mr. Raymond argues, “[t]he fees for the POST records

Bryan Smith SPR23/0986 Page 4 May 25, 2023 are inappropriate and overestimate both the length of time needed and the cost of compliance.” Mr. Raymond states, “[a] town the size of Erving should not need five hours to fulfill this request…and Erving provides no evidence that a fee of $125 is the ‘actual cost of complying.’” Additionally, Mr. Raymond argues that “[t]he fees requested do not meet the Supervisor of Records’ threshold for determining whether fee are appropriate, nor does the municipality or PD provide a rationale to meet said threshold.” Although the Town states that numerous records are responsive to the request, the Town must elaborate on how many records are responsive to the request. Further, the Town must provide an explanation of the tasks performed during the five hours of search time. I encourage the parties to further communicate in order to facilitate producing records affordably and efficiently. 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). For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Town is ordered to provide Mr. Raymond with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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: Jeff Raymond