Jeff Raymond v. Springfield, City of - Police Department (SPR 20231569)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 24, 2023 SPR23/1569 Stephen G. Roche, Esq. Second Associate City Solicitor City of Springfield Law Department 36 Court Street, Room 210 Springfield, MA 01103 Dear Attorney Roche: I have received the petition of Jeff Raymond appealing the responses of the City of Springfield (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 7, 2023, 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] 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” found at [URL provided]…. On June 9, 2023, the City responded and provided a fee estimate of $250. On June 21, 2023, the City provided a revised fee estimate of $100. Unsatisfied with the responses, Mr. Raymond petitioned this office and this appeal, SPR23/1569, 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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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

Stephen G. Roche, Esq. SPR23/1569 Page 2 July 24, 2023 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. Attorney 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). 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 City’s June 9th and June 21st Responses In its June 9, 2023 response, the City provided Mr. Raymond with a fee estimate of $250.00. On June 21, 2023, the City provided Mr. Raymond with a revised fee estimate of $100.00. In its June 21st fee estimate, the City states that it will take six hours in total to produce the responsive records, with the City assessing a fee for four hours. The City is charging an hourly rate of $25 per hour. The City states that a senior officer of the police department will spend 1.5 hours responding to the request, an IIU staff member of the police department will spend 2 hours responding to the request, an HR staff member will spend one hour responding to the request, and an attorney from the law department will spend 1.5 hours responding to the request.

Stephen G. Roche, Esq. SPR23/1569 Page 3 July 24, 2023 Although the City has estimated that the process of responding to the records request will take six hours of employee time, it is unclear how many hours each task, such as locating the records, compiling the records, and reproducing the records will take. Additionally, it is unclear if the City is reviewing the documents to redact the records pursuant to certain exemptions. Under the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). The City must clarify if redactions are required by law. Although the City indicates that it would charge an hourly rate of $25, it is unclear whether the City has used the hourly rate of the lowest paid employee capable of performing the tasks. See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.07(2)(i). The City must clarify this. I encourage the parties to continue to communicate in order to facilitate producing records efficiently and affordably. The requestor may wish to narrow the scope of the request. G. L. c. 66, § l0(a)(i). The City must use its knowledge of the records to facilitate providing any responsive records. 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 City 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 City 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