Casey E. Howard v. Northampton, City of - Police Department (SPR 20231053)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 25, 2023 SPR23/1053 Jennifer DiCarlo Records Division Assistant Northampton Police Department 29 Center Street Northampton, MA 01060 Dear Ms. DiCarlo: On May 18, 2023, this office received your petition on behalf of the Northampton Police Department (Department) seeking permission to charge for time spent segregating or redacting responsive records, and a waiver of statutory limits on fees that may be assessed in responding to the request. 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 May 11, 2023, Casey E. Howard requested approximately 21 categories of records that “have anything to do with” a named individual and covering the time period “from 2007-2023.” 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 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

Jennifer DiCarlo SPR23/1053 Page 2 May 25, 2023 purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). Petition to Assess Fees In its May 18, 2023 petition, the Department states that the responsive records “include five arrest reports, five offense reports, one accident report, ten dispatch log entries, (ninety pages in total) and ten dispatch recordings.” The Department argues that “this request could not prudently be completed without redaction or segregation.” In addition to redactions required by law under Exemption (a) of the Public Records Law, the Department provides the following information in support of its request to charge for segregation and redaction: Exemption (c): ... The requested records 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. ... The requested records contain medical information regarding a specifically named individual. As a result, and

Jennifer DiCarlo SPR23/1053 Page 3 May 25, 2023 because the disclosure of such information is not in the public interest, such information must be redacted under the law. . . . Exemption (f): ... The records requested contain identifying witness information, the disclosure of which would discourage citizens from coming forward and speaking freely with police officers in future investigations. ... Withholding civilian witness statements, interviews, and identifying information will serve the public interest of encouraging civilian witnesses to come forward in future investigations. In light of the information provided in 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. Fee in Excess of $25.00 per Hour In its petition, the Department requests to charge $40.50 per hour “to search for, compile, segregate, and redact” the dispatch recordings. In support of this request, the Department explains that “the dispatch recordings will require a separate fee estimate, as they are created and maintained at a different location, and are completely separate from police records. The Dispatch Director is the only employee capable of completing this work.” The Department explains that the Dispatch Director is the “lowest hourly rate employee capable of completing” these tasks, and has a rate of $40.50 per hour. Based on its petition, I find the Department has met its burden to explain how, given the nature of the dispatch recordings, the request for these records could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). Consequently, I find the Department may assess a fee limited to $40.50 per hour Conclusion Accordingly, to the extent the responsive records contain the exempt information described above, the Department may assess a fee for segregation and redaction. Further, as described above, the Department may assess a fee limited to $40.50 per hour to search for, compile, segregate, and redact the dispatch recordings. Please note, Casey E. Howard 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).

Jennifer DiCarlo SPR23/1053 Page 4 May 25, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Casey E. Howard