Jeff Raymond v. Lanesborough, Town of - Police Department (SPR 20231609)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 25, 2023 SPR23/1609 Chief Robert J. Derksen Lanesborough Police Department 8 Prospect Street Lanesborough, MA 01237 Dear Chief Derksen: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Lanesborough Police Department (Department) to his request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 15, 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 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

Chief Robert J. Derksen SPR23/1609 Page 2 July 25, 2023 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.’... [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 Appeal The requested records were the subject of a prior appeal. See SPR23/1256 Determination of the Supervisor of Records (June 27, 2023). In my June 27th determination, I declined to opine on Items 1, 2, and 5 due to pending litigation, found that the Department had not met its burden to redact portions of the records responsive to Item 4 under Exemption (c), and directed the Department to provide additional information regarding its fee estimate. On July 7, 2023, the Department responded. Unsatisfied with the Department’s response, Mr. Raymond petitioned this office and this appeal, SPR23/1609, 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 agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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. The Department’s July 7th response In its July 7, 2023 response, the Department provided further explanation regarding its fee estimate and reiterated its arguments for redacting responsive records pursuant to Exemption (c) of the Public Records Law.

Chief Robert J. Derksen SPR23/1609 Page 3 July 25, 2023 Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. Sch. Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This exemption requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292.

Chief Robert J. Derksen SPR23/1609 Page 4 July 25, 2023 When citing Exemption (c), the Department stated: Based on the Department’s diligent review of your request and its records, there are records responsive to your request, including charts submitted to the POST Commission from the Police Department, as well as communications related to such submissions. As permitted by law, certain information may be withheld or redacted under exemptions to the Public Records Law, other applicable provisions of law, and/or common law privileges, such as the attorney-client privilege. See, G.L. c. 4, §7(26); Suffolk Construction Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 449-450 (2007); 950 CMR 32.06(3). Nothing herein shall limit the Town’s ability to redact or withhold information in accordance with state or federal law and/or the attorney client privilege. See “A Guide to the Massachusetts Public Records Law[.]” The Department further explained: In addition, after review of its records, the enclosed responsive charts submitted to POST Commission are being provided with this response at no charge, as a courtesy, on this occasion only. After an individual assessment of the records, please be advised that personnel information regarding specifically identified individuals contained in the enclosed charts submitted to the POST Commission by the Department has been redacted from the enclosed pursuant to Exemption (c) of the Public Records Law. . . . Exemption (c) protects both personnel and medical information, as well as “intimate details of a highly personal nature.” . . . The Department also stated: In this instance, the Department has carefully considered the application of Exemption (c) to the redacted charts enclosed, to determine whether disclosure of the information that has been redacted or withheld is such that the public’s right to know outweighs any individual officer’s privacy rights, and considered the factors set forth in the PETA case, cited above, as well as litigation pending in Massachusetts courts in the matters of Hovsepian. Scott et al. v. Massachusetts Peace Officer Standards and Training Commission, Suffolk Superior Court, C.A. 2284CV00906 and New England Police Benevolent Association. Inc., and Daniel Gilbert v. Massachusetts Peace Officers Standards and Training Commission, Suffolk Superior Court, C.A 2384CV00500. In balancing these interests, the Town has concluded that it is appropriate to redact certain personnel information from the enclosed charts under Exemption (c). Regarding the previous determination’s decision on ongoing litigation related to Items 1, 2, and 5 of the request, according to a July 17, 2023, letter from the Massachusetts Peace Officer Standards and Training Commission (POST), new information has come to light in which I find that records responsive to these Items are not related to the pending litigation.

Chief Robert J. Derksen SPR23/1609 Page 5 July 25, 2023 As such, based upon the update to Exemption (c) where the amendment states that this “subclause shall not apply to records related to a law enforcement misconduct investigation,” it is unclear how the requested records can be redacted. 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 Department’s July 7th revised fee estimate The Department on May 2, 2023, previously provided a fee estimate of $50.00 and stated the following: With respect to the remaining documents identified in your request related to communications between the Department and the POST Commission and/or other municipal administration, upon payment of the fee estimated below, your request will be further processed. Under the Public Records Law, the Department is allowed to charge for employee search and segregation time necessary to respond to your request, together with any redactions required by law. That time is charged at the hourly rate of the lowest paid person capable of compiling, segregating, redacting and reproducing responsive records, in accordance with 950 CMR 32.07(2)(i). Such hourly rate shall not exceed $25/hour unless otherwise authorized by the Supervisor of Records. Unless otherwise noted below, the lowest paid employees capable of performing the necessary searches are paid more than $25/hour, and therefore you will be charged the maximum rate of $25/hour. Please note that because the Town has less than 20,000 residents, pursuant to the last decennial U.S. Census, you will be charged for all hours of work associated with this request.

Chief Robert J. Derksen SPR23/1609 Page 6 July 25, 2023 The Department then provided the following table: Title Hours Per hour Cost Police Chief (to 2 hours $45.32/hour- reduced to search for and locate $25.00/hour, as required communications by law requested) Total 2 Hours $50 On July 7, 2023, the Department provided a further explanation of the fee estimate stating the following: Without waiving any of the Police Department’s rights regarding this request, the fee estimate included in the Police Department’s response is directly related to the time necessary for the Police Chief to conduct electronic and hard copy searches to locate any Police Department’s communications as requested for the time period you included in your request. Based on review of the request and its records and how they are stored, it is estimated that it will take 2 hours to conduct such work, which is conservative, to search emails of the Police Department, as requested for a significant time period. This amount was reduced, as required, to $25/hour, and is necessary to conduct electronic searches based on the Police Department’s IT system configuration. Given the Police Department’s limited resources and staffing at this time and other law enforcement responsibilities, the Police Department cannot further waive or reduce the 2 hour fee provided, particularly as you were already provided other records you requested at no charge. Upon review, the Department has met its burden to assess a fee to search for responsive records. Conclusion Accordingly, the Department 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.

Chief Robert J. Derksen SPR23/1609 Page 7 July 25, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond