Blue POV v. Lynn, City of - Police Department (SPR 20232459)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 30, 2023 SPR23/2459 Lieutenant Paul A. Cotter Administrative Services Records Division Lynn Police Department 300 Washington Street Lynn, MA 01902 Dear Lieutenant Cotter: I have received the petition of Blue POV appealing the response of the Lynn 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 September 24, 2023, the requestor sought records related to a specific arrest that occurred on February 4, 2022. Previous appeal This request was the subject of a previous appeal. See SPR23/2294 Determination of the Supervisor of Records (October 10, 2023). In the October 10th determination, I closed the appeal in light of the Department’s September 29th response. Unsatisfied with the Department’s response, and objecting to the fees, the requestor petitioned this office and this appeal, SPR23/2459, 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 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 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

Lieutenant Paul A. Cotter SPR23/2459 Page 2 October 30, 2023 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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. Fees - Municipalities 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. 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 how 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 September 29th response In its September 29, 2023 response, the Department stated the following: Please take this email as formal notification to you, that the hourly rate for preparation of videos to include any redactions required under the law, is currently set at an hourly rate of anywhere between $88 to $97 dollars per hour. Based on the above, it is unclear whether the Department’s response is intended to be a fee estimate. If it is, then it is necessary to determine the reasonableness of the fee estimate provided. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable).

Lieutenant Paul A. Cotter SPR23/2459 Page 3 October 30, 2023 Based on the Department’s response, it is unclear how much time the Department requires to provide the responsive records. The Department must provide further details regarding the tasks involved and what each task entails, including the time it is allocating to compiling, segregating, redacting and reproducing the requested records. Additionally, the Department must provide an estimate of the total fees it intends to charge. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). As discussed above, under the Public Records Law, 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. G. L. c. 66, § 10(d)(iii). However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor under a petition under G. L. c. 66, § 10(d)(iv). Consequently, the Department must explain whether its hourly rate is that of the lowest paid employee with the necessary skill. Additionally, where the Department has not submitted a petition under G. L. c. 66, § 10(d)(iv), to charge in excess of $25 per hour, I find the Department may not assess an hourly rate greater than $25 per hour. Additionally, it is unclear under what statutes the Department intends to redact the records. 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 provide information about whether the responsive records contain information that is required by law to be segregated or redacted, as well as the applicable statutes, if any. 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 the requestor 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.

Lieutenant Paul A. Cotter SPR23/2459 Page 4 October 30, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Blue POV