Stanley Mazurczyk v. Chelmsford, Town of - Police Department (SPR 20231895)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 29, 2023 SPR23/1895 Alexandra Hayden Records Access Officer Chelmsford Police Department 2 Olde North Road Chelmsford, MA 01824 Dear Ms. Hayden: I have received the petition of Stanley Mazurczyk appealing the response of the Chelmsford Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 3, 2023, Mr. Mazurczyk requested the “complete demographic information of all sworn officers [the] Department employs.” Previous Petition This request was the subject of a previous fee petition. See SPR23/0908 Determination of the Supervisor of Records (May 11, 2023). In my May 11th determination, I found that given the nature of the requested records and the explanation in the Department’s petition, the Department was permitted to charge for time spent segregating and redacting the requested records. On May 16, 2023, the Department responded and provided Mr. Mazurczyk with a fee estimate. Unsatisfied with the Department’s response, Mr. Mazurczyk petitioned this office and this appeal, SPR23/1895, 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). 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 SPR23/1895 Page 2 August 29, 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. Att’y 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 Estimates 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). The Department’s May 16th Response In its May 16, 2023 response, the Department provides Mr. Mazurczyk with a fee estimate of $50.00. The Department states: A fee petition has been granted to our department from the Supervisor of Records. The following notice explains the fee petition, cost, and any redactions that apply to your request. As there are roughly fifty-eight personnel currently employed at the Chelmsford Police Department included in this request that must be searched for and demographic information compiled to fulfill the request. Redactions will be necessary based upon the following public records exemptions including but not limited to: [Exemption (c)…Exemption (f)…and Exemption (n)]….

Alexandra Hayden SPR23/1895 Page 3 August 29, 2023 To comply with your request, the Chelmsford Police Department estimates that the department will need approximately 4 hours to complete your request. Department acknowledges that we may not assess a fee for the first two hours in retrieving the information for your request therefore the fee is based on the 2 hours of work. As the department’s Public Records Clerk, I would be the lowest- paid employee with the necessary skill to complete the search, compilation, segregation, and redaction of the responsive records. The records will need to be approved before dissemination and will be reviewed by Lt. Hanscom. However, the department recognizes that we must charge the hourly rate of the lowest-paid employee when it comes to internal records. This department’s reasonable cost estimate will be $50.00 ($25.00 hourly rate). Although the Department has estimated that the process of producing the responsive documents for production will take 4 hours of employee time, it is unclear how long each task will take. For example, it is unclear how long it will take to search for the responsive records and how long it will take to compile the records. The Department must also clarify approximately how many pages of responsive records exist and how many minutes per page it is requiring to segregate or redact the responsive records. Additionally, in his appeal petition, Mr. Mazurczyk states, “I contend Department fee petition and response to SPR23/0908 Determination lack clarity to charge fee for segregating and redacting publically available information from document(s) it’s unclear exist and/or need segregation. Please compel [the Department to] provide requested records without any further delay.” Please be advised that where the Department has yet to produce the records, I find these matters cannot be addressed at this time, as the contents of these records are unclear. Once records are provided, Mr. Mazurczyk may appeal the substantive nature of the Department’s response within ninety calendar days. See 950 C.M.R. 32.08(1). I encourage Mr. Mazurczyk and the Department to communicate in order to facilitate producing records efficiently and affordably. Mr. Mazurczyk may wish to narrow the scope of the request or include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Department 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). Conclusion Accordingly, the Department is ordered to provide Mr. Mazurczyk with a response to his 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 the response to this office at pre@sec.state.ma.us.

Alexandra Hayden SPR23/1895 Page 4 August 29, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Stanley Mazurczyk