Greta Jochem v. Northampton, City of - Police Department (SPR 20232307)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 2, 2023 SPR23/2307 Julie Gaudreau Records Supervisor Northampton Police Department 29 Center Street Northampton, MA 01060 Dear Ms. Gaudreau: On September 27, 2023, this office received your petition on behalf of the Northampton Police Department (Department) seeking permission to charge for time spent segregating or redacting responsive records and a waiver of statutory limits on fees that may be assessed in responding to the request. G. L. c. 66, § 10(d)(iv). As required by law, the Department furnished a copy of this petition to the requestor. Id. On September 14, 2023, Greta Jochem, of the Springfield Republican, requested “[c]opies of any internal investigations that name [an identified individual] from 2013 to present. Copies of any internal investigations that name [an idneified individual] from 2013 to present.” 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 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 the request is not for a commercial purpose. 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

Julie Gaudreau SPR23/2307 Page 2 October 2, 2023 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 27, 2023 petition, the Department states that “this request could not prudently be completed without redaction or segregation.” The Department provides the following information in support of its request to charge for segregation and redaction: Exemption (c): ... The requested records contain information which, if disclosed, would constitute an unwarranted invasion of personal privacy. Such information contains intimate details and the privacy interests involved outweigh the public interests in the disclosure of that information.... The requested records contain medical information and medical records regarding a specifically named individual. Exemption (f): … The records requested contain identifying witness information, the disclosure of which would discourage citizens from coming forward and speaking freely with police officers in future investigations.… Withholding civilian witness statements, interviews, and identifying information will serve the public interest of encouraging civilian witnesses to come forward in future

Julie Gaudreau SPR23/2307 Page 3 October 2, 2023 investigations. The Department argues the following to charge an hourly rate of $30.35: [The] [l]owest hourly rate employee capable of completing this task is $30.35/hour. Due to the sensitive nature of internal investigation records… the Records Supervisor, [is] the only person in the Records Department that has access to the IA records in the department’s digitized system. 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 Given the public interest served by limiting the cost of public access to the requested records, I am unable to grant permission to charge for time spent segregating or redacting responsive records or to charge in excess of $25 an hour. Please note, this does not preclude the Town from charging for segregation and redaction that is required by law at $25.00 per hour. Sincerely, Manza Arthur Supervisor of Records cc: Greta Jochem