Nathaniel Story v. Chelmsford, Town of - Police Department (SPR 20231429)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 29, 2023 SPR23/1429 Alexandra Hayden Records Access Officer Chelmsford Police Department 2 Olde North Road Chelmsford, MA 01824 Dear Ms. Hayden: On June 22, 2023, this office received your petition on behalf of the Chelmsford Police Department (Department) seeking an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. 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 June 16, 2023, Nathaniel Story requested the following: all responses (including any responsive documents and communications with the requester) provided by the Town of Chelmsford in response to the public records request made by [a named individual] on 10/14/2021. [The individual] requested: ... Records from January 1, 2020 to December 31, 2020. Pertaining to internal affair records. This request was subject to an appeal SPR21/2739. Therefore there may have been multiple responses provided. Petitions for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; 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 SPR23/1429 Page 2 June 29, 2023 (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Request for Additional Time to Produce Responsive Records In its petition, the Department requests an extension of 12 business days and provides the following information in support of its request: The original request involving SPR21/2739 referenced by Mr. Story includes approximately 10-years worth of internal affairs records as well as any correspondence between the department and requestor over a fee petition and time extension filed at the time of the original request (October 14th 2021) as well as any responsive documents. . . . [T]here are various documents that will need to be searched, compiled, segregated, and redacted. Furthermore, the documents included in this request regard internal affairs investigations and complaints against officers. I find that in light of the need to search for, collect, segregate and examine the records, the capacity of the Department to produce the request without the extension, and efforts undertaken by the Department in fulfilling the current request and the previous request, the Department has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)- (iv). The Department is granted an extension of 12 business days. 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

Alexandra Hayden SPR23/1429 Page 3 June 29, 2023 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 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). Current Petition In its petition, the Department requests to charge for segregation and redaction under Exemptions (c) and (f), and provides the following information in support of its request:

Alexandra Hayden SPR23/1429 Page 4 June 29, 2023 Exemption (C): applies as the content contained in the request is exempt information from being a public record or the law prohibits the information being released to the public (i.e. personal phone numbers, emails, addresses of requestor, officers and complainants). This information would directly violate exemption C based on privacy thus being redacted. Exemption (F): Exemption applies as it allows the Chelmsford Police Department to withhold materials that could compromise investigative efforts if disclosed. 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. Given the public interest served by limiting the cost of public access to the requested records, permission to charge for time spent segregating or redacting responsive records cannot be granted. However, this does not preclude the Department from charging for segregation and redaction that is required by law under Exemption (a). Please be advised that the current language of Exemption (c) prohibits its application to records related to law enforcement misconduct investigations. See G. L. c. 4, § (26)(c). Conclusion Accordingly, I find the Department has established good cause for a time extension of 12 business days as described above. However, as discussed above, permission to charge for segregation and redaction, other than that required by law under Exemption (a), cannot be granted. I understand Mr. Story has contacted the Department to discuss modifying the scope of his request. This office encourages Mr. Story and the Department to continue to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification to the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Any subsequent fee estimate from the Department must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Mr. Story 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).

Alexandra Hayden SPR23/1429 Page 5 June 29, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Nathaniel Story