Jeffrey R. Turco v. Dracut, Town of - Police Department (SPR 20232247)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 27, 2023 SPR23/2247 Peter Bartlett Chief of Police Dracut Police Department 110 Loon Hill Road Dracut, MA 01826 Dear Chief Bartlett: On September 21, 2023, this office received your petition on behalf of the Town of Dracut (Town) requesting 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 a representative of the Town furnished a copy of the petition to the requestor, Attorney Jeffrey Rosario Turco. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On September 13, 2023, Attorney Turco requested the following records: [1] All electronic mail messages to or from a Town of Dracut electronic mail delivery system which references [named individual] for the time period running from January 1, 2018 through July 31, 2023[;] [2] All communications to or from the Town of Dracut which reference [named individual] for the time period running from January 1, 2018 through July 31, 2023[;] [3] All text messages to or from the Town of Marblehead Chief of Police which reference [named individual] for the time period running from January 1, 2018 through July 31, 2023[;] [4] All communications related to POST certification which reference [named individual] for the time period running from January 1, 2019 through July 31, 2023[.] 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 Peter Bartlett SPR23/2247 Page 2 September 27, 2023 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. 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). Request for Additional Time to Produce Records In its petition, the Town requests “…additional 30 business days to respond to this request.” In support of its request, the Town provides the following information: The Town estimates that it will take approximately 113.5 hours (i.e. 1 minute per page) to search for (i.e. review the 6,798 records that have been gathered to determine if they are responsive to the request), segregate and potentially redact the 6,798 records that have been identified in response to requests #1, #2, #3, and #4. . . . [T]he Town makes this request for additional time because the employee who will perform the search, segregation and redaction process has many other responsibilities, which they cannot ignore.

Chief Peter Bartlett SPR23/2247 Page 3 September 27, 2023 I find that in light of the need to collect, segregate and examine the records, as well as the capacity of the Town to produce the records without an extension, the Town has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iii). I hereby grant the Town an extension of 30 business days to furnish copies of records responsive to Attorney Turco’s request. See G. L. c. 66, § 10(c). To the extent possible, the Town must provide responsive records on a rolling basis. Petition to assess fees – Municipalities 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 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). It is my determination that this request was not made for a commercial purpose. 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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).

Chief Peter Bartlett SPR23/2247 Page 4 September 27, 2023 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 petition, the Town requests permission to assess a fee “to search for, segregate and potentially redact records that are responsive to the request,” and states the following: [T]he Town is in possession of approximately 6,798 records that have been identified in response to requests #1, #2, #3, and #4.… Additionally, in correspondence included with its appeal petition, the Town states the following: The records ... need to be reviewed, and potentially redacted, for several reasons. Under Exemption C, records may be withheld when they involve “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 ....” G. L. c. 4, § 7(26)(c). A review of the 6,798 records indicate that redactions may need to be made pursuant to this exemption. In light of the Town’s petition, I find the Town 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 extent the responsive records contain the exempt information as described above, the Town may assess a fee for the segregation and redaction of such exempt material. Conclusion As described above, I find that the Town has established good cause for a time extension of 30 business days. Additionally, to the extent the responsive records contain the exempt information described above, the Town may assess a fee for segregation and redaction.

Chief Peter Bartlett SPR23/2247 Page 5 September 27, 2023 Further, this office encourages Attorney Turco and the Town to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii)(a municipality or agency 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 municipality or agency to produce records sought more efficiently and affordably). When preparing a fee estimate for the provision of the requested records, the Town is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Town must provide a response to Attorney Turco within five (5) business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Sincerely, Manza Arthur Supervisor of Records cc: Jeffrey Rosario Turco, Esq. David A. DeLuca, Esq., Murphy, Hesse, Toomey & Lehane, LLP Ariana N. Imbrescia, Esq., Murphy, Hesse, Toomey & Lehane, LLP