George and Jen Burden v. Lunenburg, Town of - Police Department (SPR 20232000)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 8, 2023 SPR23/2000 Chief Thomas L. Gammel Chief of Police Lunenburg Police Department 655 Massachusetts Avenue Lunenburg, MA 01462 Dear Chief Gammel: I have received the petition of George Burden appealing the response of the Lunenburg 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 August 14, 2023, Mr. Burden requested, “any and all police reports for incidents in Lunenburg relating to: 1.) noisy and disorderly house keep, and 2.) disturbing the peace that have occurred since January 2010.” On August 24, 2023, the Department responded and provided Mr. Burden with a fee estimate. Unsatisfied with the Department’s response, Mr. Burden petitioned this office and this appeal, SPR23/2000, 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 Department 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(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. 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 Thomas L. Gammel SPR23/2000 Page 2 September 8, 2023 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 Department’s August 24th Response In its August 24, 2023 response, the Department provided a fee estimate of $479.60. The Department stated the following: [T]here are 1,385 calls for service, of those calls 594 were unfounded, 615 were founded, 180 criminal cases, and 3 that involved motor vehicle accidents. Due to the amount of information that is required for this request a fee of $479.60 will be assessed. The following is a breakdown of the costs: [1.] 8 hours @ $25.00 an hour, for a total of $200.00 [a.] Each call (log) for service needs to be reviewed. [b.] Each call (log) needs to be segregated from criminal complaints. [c.] Each call (log) will need to be redacted. [d.] Reports will be reviewed. [e.] Reports will be segregated from criminal complaints. [f.] Reports will be reviewed for Public Records Exemptions. [g.] Reports will be need to be redacted.

Chief Thomas L. Gammel SPR23/2000 Page 3 September 8, 2023 [2.] .05 cents per page, estimated 5,592 pages, for a total of $279.60 [a.] Average log is one page. [b.] Reports are a minimum of two pages. Current Appeal In his appeal, Mr. Burden states, “[the Department did] not identify how many of the calls to service are related to noisy and disorderly house keep, and 2.) disturbing the peace…” Although the Department has estimated that the process of responding to the records request will take 8 hours of employee time, it is not clear from the Department’s estimate how much time is allocated to search, and how much time is allocated for segregation, and redaction of the records. As such, the Department must provide additional information regarding the tasks involved in producing these records. Also, the Department must clarify if the 8 hours includes the first free 2 hours to search for, compile, segregate, redact or reproduce records. 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). Further, I find the Department must clarify if the redactions are required by law, and state the applicable statutes, if any. Pursuant to 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 Department must clarify. Additionally, The Department’s fee estimate lacks confirmation that the rate of $25 per hour is of the lowest paid employee who is capable of performing the task(s). The Department must clarify. For the reasons discussed above, I find the Department 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 Department is ordered to provide Mr. Burden 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 the response to this office at pre@sec.state.ma.us.

Chief Thomas L. Gammel SPR23/2000 Page 4 September 8, 2023 Sincerely, Manza Arthur Supervisor of Records cc: George Burden