Aimee Leach v. Townsend, Town of - Police Department (SPR 20240016)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 10, 2024 SPR24/0016 James P. Sartell Chief of Police Townsend Police Department 70 Brookline Road Townsend, MA 01469 Dear Chief Sartell: On January 2, 2024, this office received your petition on behalf of the Townsend Police Department (Department) seeking an extension of time to produce records, permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, I understand that the Department furnished a copy of this petition to the requestor, Aimee Leach, of EWU Media LLC. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On December 18, 2023, Ms. Leach requested the following: [I]nterrogation footage of [a named individual] in video format, confession footage of [the individual] in video format, crime scene photos, crime scene videos, evidence photos, evidence videos, all 911 calls recorded in relation to the case in audio format, all body cam recorded in relation to the case in video format, body cam footage of the arrest of [the individual] in video format, police reports, dash cam footage filmed in relation to the case in video format, CCTV/surveillance footage related to the case in video format. Petitions for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the 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 James P. Sartell SPR24/0016 Page 2 January 10, 2024 municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(b). Request for Additional Time to Produce Responsive Records In its petition, the Department requests an extension of time, and in an email to this office on January 10, 2024, the Department clarifies that it seeks an additional 25 business days. In its petition, the Department provides the following information in support of its request: With respect to the request, [the Department has] the following records: * Documentation and investigatory notes * VHS tapes and audio recordings * Police reports prior to release of investigation to State Police . . . In order to comply with these requests, it will take approximately 80 hours of search and segregation time, based upon the following: * Segregation of investigatory documentation * Redaction of video tapes, including transfer of images to digital format * Without proper software, this may have to be contracted out for an additional cost I find that in light of the need to search for, collect, segregate and examine the records, the capacity of the Department to produce the request without the extension, efforts undertaken by the Department in fulfilling the current request, the Department has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). The Department is granted an extension of 25 business days.

Chief James P. Sartell SPR24/0016 Page 3 January 10, 2024 Petition to Assess Fees – Municipalities The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). 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). 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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).

Chief James P. Sartell SPR24/0016 Page 4 January 10, 2024 Current Petition In its petition, the Department requests to “charge a fee for segregation and redaction,” and argues the following in support of its request: [The Department] will be required to make certain redactions to those records in accordance with the Public Records Law. The redactions will be necessary under Exemption C of the Public Records Law: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. As this incident involved juveniles, any camera footage showing their faces, as well as any statements made by them with personal information, would need to be redacted. In light of the Department’s petition, I find the Department has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the Department may assess a fee for the segregation and redaction of such exempt material. Conclusion Accordingly, I find the Department has established good cause for a time extension of 25 business days as described above. Additionally, to the extent the responsive records contain the exempt information described above, the Department may assess a fee for segregation and redaction. Please note, Ms. Leach has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Aimee Leach Trish Benoit-Rudden