Blue POV v. Salem, City of - Police Department (SPR 20232461)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 31, 2023 SPR23/2461 Ann Marie Greene Principal Clerk Support Services - Records Division Salem Police Department 95 Margin Street Salem, MA 01970 Dear Ms. Greene: I have received the petition of Blue POV appealing the response of the Salem 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 6, 2023, the requestor requested the following: 1. All body cam footage of arresting officer for the arrest of [a named individual] arrested on 10/16/22 for A&B on police officer, a&b with dangerous weapon, vandalize property, resist arrest and disorderly conduct. Incident Number 2200020719 (correct case is actually 22-29538); including all police reports and or 911 or non emergency calls from incident. 2. All body cam footage of arresting officer for the arrest of [a second individual] arrested on 10/08/22 for disorderly conduct, accost/annoy another person and resist arrest. Incident Number 2200028542: including all police reports and or 911 or non emergency calls from incident. 3. All body cam footage of arresting officer for the arrest of [a third individual] arrested on 10/29/22 for A&B, destruction of property malicious and disorderly conduct. Incident Number 2200031387; including all police reports and or 911 or non emergency calls from incident. The Department responded on September 20, 2023, and following further correspondence, responded again on October 13, 2023, providing a fee estimate. Objecting to the fees, the requestor appealed, and this case was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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

Ann Marie Greene SPR23/2461 Page 2 October 31, 2023 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 any agency or municipality 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. Att’y 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 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. 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 Appeal In the appeal petition, the requestor contends that “the estimate is not in good faith and is overly charging.” Additionally, the requestor notes that they “only asked for the arresting officers footage.” Further, the requestor contends the following:

Ann Marie Greene SPR23/2461 Page 3 October 31, 2023 Just because a requester makes multiple separate requests does not mean the agency can compile all the requests and make them 1, to then try and over charge for time spent and make it difficult for people of the public to gather these matters of public interest. I am looking for all 3 requests to be handled as they were received, separate. The requestor is advised that a requestor may not divide a request into multiple parts in order to circumvent the fees allowed by the Public Records Law. The Department’s September 20th and October 13th Fee Estimate In its September 20, 2023 response, the Department provides the following fee estimate: In response to [the] request for all BWC (Body Worn Camera) video footage, including all incident reports and 911 call information related to these three incidents/arrests, a good faith estimate for the work hours (@$25/hour for all work over two hours per Mass Public Records Law) in which it will take approximately a minimum of 11 hours to compile, segregate, redact, and prepare the video footage, incident reports and 911 call information for the arrest information [the requestor is] requesting. The estimate of 9 hours (over the two hours no cost of preparation per Mass Public Records Law) of body worn camera, incident reports and 911 call information times $25/hr. totaling approximately $225. Additionally, the Department provides the following details: Compile, segregate and redact and prepare the arrest information (per Mass Public Records Law) for 22-29538 ...; BWC (Body Worn Camera) compiled 4 videos (114 minutes raw footage) = 4 hours to complete; incident report and 911 calls = 1 hour to complete Compile, segregate and redact and prepare the arrest information (per Mass Public Records Law) for 22-28542 ...; BWC (Body Worn Camera) compiled of 3 videos (25 minutes raw footage) = 1 hours to complete; incident report and 911 calls = 1 hour to complete Compile, segregate and redact and prepare the arrest information (per Mass Public Records Law) for 22-31387 ...; BWC (Body Worn Camera) compiled of 12 videos (68 minutes raw footage) = 3 hours to complete; incident report and 911 calls = 1 hour to complete Total hours to complete request = 11 work hours (@$25/hour for all work over two hours per Mass Public Records Law) is 9 hours @$25 per hour = $225. Further, in an email to the requestor on October 13, 2023, the Department provides an

Ann Marie Greene SPR23/2461 Page 4 October 31, 2023 alternative fee estimate totaling $150, “with 911 calls and incident reports now to be omitted from [the] initial request.” Based on the information provided in the Department’s fee estimate, it is unclear why it requires the amounts of time indicated above to segregate, redact and compile the 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. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). 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 records, but the fee shall not be more than $25 per hour. G. L. c. 66, § 10(d)(iii). Accordingly, the Department must confirm whether the hourly rate being used is equal to or less than that of the lowest paid employee with the necessary skills to perform the tasks. In accordance with the Public Records Law, 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). Accordingly, the Department must provide further explanation as to whether the redactions described in the fee estimate are required by law. In addition, where the requestor requested only the arresting officer’s video footage, it is unclear why the Department must review multiple videos for each part of the request. For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fees assessed are 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 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. Sincerely, Manza Arthur Supervisor of Records cc: Blue POV