Eric B. Mack, Esq. v. Fall River, City of - Office of the Corporation Counsel (SPR 20232344)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 11, 2023 SPR23/2344 Sergeant Moses Pereira Fall River Police Department 685 Pleasant Street Fall River, MA 02721 Dear Sergeant Periera: I have received the petition of the Fall River Police Department (Department) seeking a waiver of statutory limits on fees that may be assessed in responding to a public records request. G. L. c. 66, § 10(d)(iv). 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 18, 2023, Attorney Eric Mack requested eleven categories of documents pertaining Fall River police officers, including: [2.] All documents which allege or concern allegations of misconduct by [a named individual] or [a named individual], while acting as police officers. This includes allegations or complaints of misconduct by civilians as well as allegations by law enforcement officials… [11.] Any and all video interviews of public employees related to the investigation into the Harden Shooting… Petitions to Assess Fees 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 (Supervisor) 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). 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). 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

Sergeant Moses Pereira SPR23/2344 Page 2 October 11, 2023 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. 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; 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 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). Current Petition In its current petition, the Department states: [1.] The fee estimate associated with production of documents responsive to Request 2 is $745.52, which is calculated as follows:

Sergeant Moses Pereira SPR23/2344 Page 3 October 11, 2023 [a.] $245.52 (6 hours @ $40.92 p/hr) for time to search, compile, and duplicate the requested public records. The lowest paid clerk is not competent to respond to this request, and this $40.92 figure is the lowest hourly rate for a police department employee who is qualified to prepare the records. [b.] $500.00 (2 hours @ $225.00 p/hr) for attorney review required for redaction, confidentiality, and/or for applicability of other legal privileges. Attorney Mack has already threatened the city with multi-million dollar litigation regarding this police involved shooting, so the city intends to have an outside attorney review any and all documents prior to production. [2.] The fee estimate associated with production of documents responsive to Request 11 is $2,354.74, which is calculated as follows: [a.] $100.00 (4 hours @ $25.00 p/hr) for time to search, compile, and duplicate the requested public records. [b.] $454.74 (13 hours @ $34.98 p/hr) for time to redact and process the request police interviews. The lowest paid clerk is not competent to perform this necessary task, and this $34.98 figure is the lowest hourly rate for a police department employee who is qualified to properly prepare the requested public records. [c.] $1,800.00 (8 hours @ $225.00 p/hr) for attorney review required for redaction, confidentiality, and/or for applicability of other legal privileges. . . . On October 3, 2023, Attorney Mack sent an email to this office in opposition of the fee petition. 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: Eric Mack, Esq. Gary Howayeck, Esq.