Dusty Christensen v. Northampton, City of - Police Department (SPR 20231330)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 26, 2023 SPR23/1330 Julie Gaudreau Records Supervisor Northampton Police Department 29 Center Street Northampton, MA 01060 Dear Ms. Gaudreau: On June 16, 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. G. L. c. 66, § 10(d)(iv). As required by law, the Department furnished a copy of this petition to the requestor. Id. On June 5, 2023, Dusty Christensen requested “[a]ny video, such as dash-cam footage, that exists related to the arrest of [a named individual] on April 4, 2023.” Petition to Assess Fees The 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, § 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 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

Julie Gaudreau SPR23/1330 Page 2 June 26, 2023 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). Current Petition In its June 16, 2023 petition, the Department states that “[t]here were 6 cruisers that have video and audio that are potentially responsive to this request.” The Department further explains: In order to identify the dash cam footage that the requestor is asking for, each one will have to be watched and listened to in order to search and identify if there is anything within the audio or video that would require redaction under the law. The dash cams have three different views and three different audio sources, so the same video would need to be watched multiple times. The dash cams vary in length: Car 50 – 27:21[;] Car 20 – 19:05[;] Car 21 – 18:30[;] Car 44 – 19:20[;] Car 51 – 4:45[;] Car 53 – 36:51[.] 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:

Julie Gaudreau SPR23/1330 Page 3 June 26, 2023 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 the operator license number of a specifically named individual, as well as possible medical information. 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. Conclusion Accordingly, I find that to the extent the responsive records contain the exempt information described above, the Department may assess a fee for segregation and redaction. Please note, Mr. Christensen 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). Sincerely, Manza Arthur Supervisor of Records cc: Dusty Christensen