Shelby Lee v. Easthampton, City of - Police Department (SPR 20232827)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 5, 2023 SPR23/2827 Chief Robert Alberti Easthampton Police Department 32 Payson Avenue Easthampton, MA 01027 Dear Chief Alberti: I have received the petition of Shelby Lee appealing the response of the Easthampton 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 November 2, 2023, Shelby Lee requested the following “records pertaining to the departments policies and implementation of Massachusetts General Laws Part 1 Title XVII Chapter 123 Section 12”: 1. Any and all communications between or among employees, officers, administrators, co-responders, third parties, and dispatch personnel regarding the above mentioned, implementation of the above mentioned, and reference to the above mentioned from Jan 01, 2020 to present. 2. Any and all policies, manuals, or procedures governing the implementation, use, or in reference to the above mentioned maintained, created, or utilized by the department, its co-responders, officers, administrators, third parties, and dispatch personnel. 3. Any and all records pertaining to, or containing reference to the above mentioned, from Jan 01, 2020 to present. On November 17, 2023, the Department responded and provided a fee estimate. Unsatisfied with the Department’s response, Shelby Lee petitioned this office and this appeal, SPR23/2827, 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 any agency or 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 Robert Alberti SPR23/2827 Page 2 December 5, 2023 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). Fee estimate – 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 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). The Department’s November 17th Fee Estimate In its November 17, 2023 response, the Department provided a fee estimate of $375.00. The Department asserted: [P]ortions of the responsive documents will be redacted pursuant to G.L. c. 4, § 7(26)(a), (c), and (f), G.L. c. 214 §1B, attorney-client privilege and/or as required by law. The requested records contain information that is exempt under [Exemptions (a) and (c)] and as such, the Department is prohibited from releasing

Chief Robert Alberti SPR23/2827 Page 3 December 5, 2023 such information to the public (i.e., personal phone numbers, emails, addresses, and/or health and medical information). In accordance with [Exemption (f)], the records responsive to your request will also require careful review prior to dissemination to ensure that investigative efforts are not compromised. As such, these records cannot be provided without redaction or segregation. As the City is a municipality with a population less than twenty thousand (20,000) people, a fee will be assessed for the costs associated with time spent searching for, compiling, segregating, reproducing and redacting the requested records as required by law. See G.L. c. 66 §10(d)(iii). Based on the City’s good faith estimate, a fee of $375.00 will be required which is based on an estimated time of fifteen (15) hours at $25.00 an hour to complete your request(s). In its fee estimate, the Department stated that it will assess a $375.00 fee, however, it is unclear how the Department calculated its $375.00 fee. Particularly, it is not clear how many hours will be spent searching, segregating, redacting or reproducing the records. The Department must provide further details regarding the tasks involved, including the time it is allocating to searching, compiling, segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Although the Department claims that it is assessing a fee for redactions under Exemptions (a), (c), (f), and attorney-client privilege, it is unclear how the Department can assess a fee for redactions under Exemptions (c) and (f) in this matter. Under 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). I am not aware that the Department has submitted a petition under G. L. c. 66, § 10(d)(iv). As such, although the Department may assess a fee for redactions required by law as in Exemption (a) and attorney- client privilege, it is uncertain whether the fees include time to redact records under Exemptions (c) and (f). The Department must clarify this. Additionally, the Department’s fee estimate lacks confirmation that the rate of $25 per hour is of the lowest paid employee who is capable of performing the task(s). The Department must clarify. Current Appeal In the petition, Shelby Lee asserts: Although I do not doubt that there is a reasonable possibility some of these records could require some level of redaction -- most likely only communications, if that-- I do not believe there is any circumstance in which there is no segregable part of the above requested records that the city or department cannot provide without effort that exceeds what is required of the records keeper under the public records law. Most specifically, item two of my request should contain no

Chief Robert Alberti SPR23/2827 Page 4 December 5, 2023 information that is not part of public record and should not require significant time or effort to locate. In light of the above, I find the Department must clarify if its fee estimate includes records responsive to Item 2 of the request. Specifically, the Department must clarify if it is assessing a fee to produce “. . . policies, manuals, or procedures. . .” I encourage Shelby Lee and the Department to communicate in order to facilitate producing records efficiently and affordably. Shelby Lee may wish to narrow the scope of the request or include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Department must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (a municipality 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 to produce records sought more efficiently and affordably). Conclusion Accordingly, the Department is ordered to provide Shelby Lee 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. Sincerely, Manza Arthur Supervisor of Records cc: Shelby Lee