Stanley Mazurczyk v. Chelmsford, Town of - Police Department (SPR 20233056)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 3, 2024 SPR23/3056 Alexandra Hayden Records Access Officer Chelmsford Police Department 2 Olde North Road Chelmsford, MA 01824 Dear Ms. Hayden: I have received the petition of Stanley Mazurczyk appealing the response of the Chelmsford 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 May 3, 2023, Mr. Mazurczyk requested the “complete demographic information of all sworn officers [the] Department employs.” Previous Petition and Appeals This request was the subject of a previous fee petition. See SPR23/0908 Determination of the Supervisor of Records (May 11, 2023). In my May 11th determination, I found that given the nature of the requested records and the explanation in the Department’s petition, the Department was permitted to charge for time spent segregating and redacting the requested records. This request was also the subject of previous appeals. See SPR23/1895 Determination of the Supervisor of Records (August 29, 2023) and SPR23/2170 Determination of the Supervisor of Records (September 25, 2023). In my September 25th determination, I found that it was unclear why the Department required 2 hours to segregate and redact 26 pages of responsive records and how the Department could assess a fee for “[d]ocuments reviewed & approved.” On October 5, 2023, the Department responded. Unsatisfied with the Department’s response, Mr. Mazurczyk petitioned this office and this appeal, SPR23/3056, 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

Alexandra Hayden SPR23/3056 Page 2 January 3, 2024 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 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). The Department’s Responses In its August 31, 2023 response, the Department provided Mr. Mazurczyk with a fee estimate of $50.00. The Department states: To comply with his request, the Chelmsford Police Department estimates that the department will need approximately 4 hours to complete the request. The department acknowledges that we may not assess a fee for the first two hours in retrieving the information for the request [therefore] the fee is based on the 2 hours of work. As the department’s Public Records Clerk, I would be the lowest-

Alexandra Hayden SPR23/3056 Page 3 January 3, 2024 paid employee with the necessary skill to complete the search, compilation, segregation, and redaction of the responsive records. The records will need to be approved before dissemination and will be reviewed by Lt. Hanscom. However, the department recognizes that we must charge the hourly rate of the lowest-paid employee when it comes to internal records. This department’s reasonable cost estimate will be $50.00 ($25.00 hourly rate) for the remaining 2 hours of the total 4 hours of work. This fee was submitted and approved by the Supervisor of [R]ecords. I then reached out to Mr. Mazurczyk to notify him on May 16th, 2023 that the department will release the records once the payment has been made…. Below is a cost breakdown as requested by the [S]upervisor of [R]ecords (SPR23/1895)… 26 pages Documents searched & compiled: 1 hr(s) or 60 mins Documents segregated & redacted 2 hr(s) or 120 mins Documents reviewed & approved: 1 hr(s) or 60 mins In its October 5, 2023 response, the Department reiterates a fee estimate of $50.00. The Department states: [The Department] does not have a sole document that lists the demographic information of sworn and nonsworn personnel that Mr. Mazurczyk is requesting. Per public records law we are not required to create a record for the requestor, thus the best solution was taking internal documents with the information sought to fulfill Mr. Mazurczyk’s request. The documents searched and compiled are typically for internal use only and are not readily available to the public. These documents contain personnel and staff lists that have personal cell phone numbers, and extension numbers, as well as email addresses, and rank or title of the employee. All these documents are not typically kept within the records department, and the clerk does not have direct access to these. Because these documents hold both public and private information they will need to be reviewed and redacted to protect personal information such as cell phone numbers of employees. Although the Department states that it would take 2 hours to redact the 26 pages of records, it is unclear the number of minutes that the Department must spend per page for the redactions. Further, based on the Department’s cost estimate, it is uncertain how the Department may assess a fee for “[d]ocuments reviewed & approved” under G. L. c. 66, § l0(d)(iii). Particularly, it is not clear how the task constitutes time to search for, compile, segregate, redact,

Alexandra Hayden SPR23/3056 Page 4 January 3, 2024 or reproduce records. The Department must provide additional information regarding what this task entails and why it is necessary to produce responsive records. I encourage Mr. Mazurczyk and the Department to communicate in order to facilitate producing records efficiently and affordably. Mr. Mazurczyk 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 Mr. Mazurczyk with a response to his 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: Stanley Mazurczyk