Nathaniel Story v. Chelmsford, Town of - Police Department (SPR 20232189)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 20, 2023 SPR23/2189 Alexandra Hayden Chelmsford Police Department Records Access Officer 2 Olde North Road Chelmsford, MA 01824 Dear Ms. Hayden: On September 13, 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, it is my understanding that the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). On September 8, 2023, Nathaniel Story, of MuckRock News, requested, “all emails, including any attachments, sent by the Chelmsford Police Department to [a specified] email address ... between the dates 9/30/2021 to present.” Petition 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; (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. 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 SPR23/2189 Page 2 September 20, 2023 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) must 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). Extension of Time to Produce Responsive Records In its September 13, 2023 petition, the Department states: The original request emails referenced by Mr. Story includes approximately 3- years’ worth of internal records as well as any correspondence between the department and POST commission as well as any responsive documents or attachments included in the correspondence. The Department further explains: [The Department] respectfully requests permission to extend the time to fulfill Mr. Story’s request. As there are various documents that will need to be searched, compiled, segregated, and redacted. Furthermore, the documents included in this request regard email correspondence and all attachments from Chelmsford police to POST. The Chelmsford Police request a time extension of an additional ten (10) business days to fulfill this request… [the Department does] not have direct access to the records requested and will have to consult with the town’s IT department to inquire if a search can be done and what it will yield. I find that in light of the need to collect and segregate the records, as well as the capacity of the Department to produce the records without an extension, the Department has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(ii). The Department is granted an extension of 10 business days. Petition to assess fees The 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 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

Alexandra Hayden SPR23/2189 Page 3 September 20, 2023 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 or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). 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 September 13, 2023 petition, the Department argues the following in support of its request to charge for segregation and redaction under Exemptions (b), (c), (n), and (o) of the Public Records Law: [1.] Exemption B: Rules and Practices Exemption - The information in this request is complex in nature and will need to be carefully reviewed and approved

Alexandra Hayden SPR23/2189 Page 4 September 20, 2023 prior to dissemination. These documents contain log in credentials of officers and department heads such as “logins and passwords” which would need to be redacted as it could be considered a safety breach or deter any future police practices such as reporting to POST and other internal investigations. By releasing log-in credentials it would allow the public to access sensitive information regarding personnel and the public. Such as dates of birth and home addresses, that would have otherwise been withheld. This could lead to compromising other internal credentials for officers and departmental heads specifically the JIRA platform which is used specifically for POST reporting, or E-Tracker which is used for tracking evidence to name a few. And in turn could grant access to numerous sensitive documents and information collected by Chelmsford Police. [2.] Exemption C: Privacy Exemption – The information involved in this request such as dates of birth, personal phone numbers, etc. are prohibited from being public record by law and are exempt. [3.] Exemption N: Safety & Security Exemption – Certain records which, if released, will likely jeopardize public safety. As previously stated, the information in this request is complex in nature. It will need to be carefully reviewed, assessed, and approved prior to dissemination to ensure it does not compromise investigative and future police efforts. In this case, things like usernames, passwords, links, and step by step directions used for internal login. This information is not readily available to the public nor is it necessary for the public to view and if released has the potential for internal and closed police software or websites used by this department and statewide to be compromised. In turn could compromise past, current or future sensitive documents and reports. If released it would give an unfair advantage to the public and can start a statewide data breach regarding both the public and police personnel and an unwarranted invasion of privacy and access to records. [4.] Exemption O: Personal Information of Employee Exemption – This exemption allows the withholding of personal emails, phone numbers, addresses, etc. of the agency’s employees and governmental employees. This content, if found in the requested documents is exempt information from public record, or prohibited by law, and would need to be redacted. If released to the public could cause employees to be harassed or placed at great risk as the public has intimate knowledge of their residence and how to contact them directly beyond their place of employment. G. L. c. 66, § 10(d)(ix). In light of the information provided in the Department’s petition, I find the Department has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the

Alexandra Hayden SPR23/2189 Page 5 September 20, 2023 extent the responsive records contain the exempt information as described above, the Department may assess a fee for the segregation and redaction of such exempt material. The Department is 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 As described above, I find that the Department has established good cause for a time extension of 10 business days. Further, I approve the Department’s petition to assess a fee for segregation and redaction. Please be advised, municipalities may not assess a fee for the first 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. See G. L. c. 66, § 10(d)(iii). Please note, the requestor 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). Sincerely, Manza Arthur Supervisor of Records cc: Nathaniel Story