Jeff Raymond v. Danvers, Town of - Town Clerk (SPR 20230992)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 25, 2023 SPR23/0992 Catherine S. Ellsworth Town Clerk Town of Danvers One Sylvan Street Danvers, MA 01923 Dear Ms. Ellsworth: I have received the petition of Jeff Raymond of the Bramanville Tribune appealing the response of the Town of Danvers (Town) to his request for public records. See G. L. c. 66, §10A; see also 950 C.M.R. 32.08(1). On April 9, 2023, Mr. Raymond requested the following records: [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 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’ ... 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

Catherine S. Ellsworth SPR23/0992 Page 2 May 25, 2023 [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. Prior Petition This request was the subject of a previous petition for an extension of time and to charge fees. See SPR23/0794 Determination of the Supervisor of Records (April 28, 2023). In my April 28th determination, I found that the Town had established good cause to permit an extension of time of 10 business days and that the Town had met its burden to assess a fee. The Town responded on April 24, 2023. Unsatisfied with the response, Mr. Raymond petitioned this office and this appeal, SPR23/0992 was opened as a result. 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 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). The Town’s April 24th Fee Estimate In its April 24, 2023 response, the Town provided a fee estimate of $52.50 and stated the following: the lowest paid employee who has the necessary skill required to search for, compile and reproduce the records requested is the Town’s

Catherine S. Ellsworth SPR23/0992 Page 3 May 25, 2023 Chief of Police… [Chief of Police]’s hourly rate exceeds $25. [Named firm] will also be involved in the review and production of these records. [Named firm]’s hourly billable rate to the Town also exceeds $25. Notwithstanding those rates, a rate of $25 per hour will be used to calculate the following fee estimate. In further support of its fee estimate, the Town stated: While Exemption C shall not apply to records related to a law enforcement misconduct investigation, it does apply to any records that contain medical files and other materials or data that may constitute an unwarranted invasion of personal privacy. Here, some of the records may contain medical records and other materials, which, if disclosed, could result in an unwarranted invasion of privacy. Moreover, Exemption F, the investigatory exemption, may also be applicable, because some of the requested records involve ongoing investigations, and the disclosure of such records could compromise investigative efforts… The Town additionally stated, “the Town estimates that it will take approximately 2.5 hours (i.e., 1 minute per page) to search for (i.e., review the 150 pages of records that have been gathered to determine if they are responsive to your request), segregate and potentially redact the 150 pages of records that have been identified in response to requests #1, #2, #3, #5, and #6. Furthermore, two Excel spreadsheets containing records related to request #4 contain approximately 94 combined entries. It will take approximately 1.6 hours (i.e., 1 minute per entry) to search for (i.e., review the two Excel spreadsheets that have been gathered to determine if they are responsive to your request), segregate and potentially redact the approximately 94 entries of records that have been identified in response to request #4. In accordance with 950 CMR 32.07(2)(m)(1), you will not be charged for the first two (2) hours of those services. Two and one tenth hours (2.1) multiplied by $25 per hour yields a fee estimate of $52.50.” Current appeal In his appeal, Mr. Raymond states, “I seek a full denial of the assessing of fees for these public records. The municipality has not met the burden of proving the need to assess fees for these records, and they are… in the public interest to be disclosed promptly and freely… it should be noted that a) there is significant and clear public interest in these records being made freely available to the public, given the attention toward police activity and misconduct in the last few years and the passage of the police reform bill in 2020…” Fee Waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records:

Catherine S. Ellsworth SPR23/0992 Page 4 May 25, 2023 the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). Upon review, the Town has explained the tasks involved in searching the records, and the amount of time required to process the records request. I find the Town has met its burden and the fee estimate of $52.50 is a reasonable fee estimate for the production of records responsive to this request. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond Brett R. Cavanaugh, Esq.