Andrew Quemere v. Beverly, City of - Police Department (SPR 20240047)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 19, 2024 SPR24/0047 Captain Richard Russo Beverly Police Department 191 Cabot Street Beverly, MA 01915 Dear Captain Russo: I have received the petition of Andrew Quemere appealing the response of the Beverly Police Department (Department) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On February 5, 2023, Mr. Quemere requested: [1.] All reports and other documentation related to a June 18, 1984 incident that led to [a named individual] being charged with assault and battery [2.] All reports and other documentation related to a July 22, 1984 incident that led to [a named individual] being charged with making threats at the Project RAP shelter in Beverly[.] The Department provided a response on January 5, 2024, providing a fee estimate. Unsatisfied with the response, Mr. Quemere petitioned this office and this appeal, SPR24/0047, 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 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. 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

Captain Richard Russo SPR24/0047 Page 2 January 19, 2024 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 estimate – 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 (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 January 5th response In its January 5, 2024 response, the Department stated the following: Any records from 1984, if present and located, would be in paper format and would need to be converted to electronic format. It is estimated that the entire process may take up to 16 hours at a cost to you of up to $350.00 to provide the records you requested. We will make every effort to provide them to you at the minimal cost and within 10 days from you agreeing to the fee and authorizing us to proceed. In order for us to complete this task within the 10 day time frame, we will be utilizing staff on an overtime basis thus the attached fee. Current appeal In his appeal, Mr. Quemere states the following:

Captain Richard Russo SPR24/0047 Page 3 January 19, 2024 It is unclear why this would take 16 hours. The department did not provide the number of pages it would need to scan; generally police reports are only a few pages long, and I only requested reports about two incidents. Furthermore, the process of scanning documents generally does not take very long. The process of scanning these reports should only take a few minutes. Based on my own experience scanning documents, even if there were a thousand pages and the department needed to remove numerous staples, the process still wouldn’t take more than a few hours. Additionally, the department is required to provide the first two hours of labor at no cost. It is unclear from the department’s response whether its estimate takes this into consideration. The department notes that it has not located the records yet. The department is required to state in its response whether or not it has responsive records. The department cannot charge a fee for records that do not exist. The department states that it is charging the assessed fee because it is “utilizing staff on an overtime basis.” The department cannot charge more per hour than the rate of the lowest-paid employee capable of performing the task and cannot charge at overtime rates. It is unclear from the department’s response how much it is charging per hour and whether it is the rate of the lowest-paid employee capable of performing the tasks. Although the Department has estimated that the process of compiling, reviewing, and preparing requested records requires 16 hours to produce responsive records, it is not clear from the Department’s estimate how much time is allocated to search, and how much time is allocated for segregation and/or redaction of the records. Further, the Department must provide additional information regarding the tasks involved in producing these records. Accordingly, the Department must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Further, the Department’s fee estimate lacks confirmation that the rate per hour is of the lowest paid employee who is capable of performing the task(s) and whether the first two hours of employee time to search for, compile, segregate, redact or reproduce the record or records has been factored into the fee estimate. I encourage Mr. Quemere and the Department to communicate further in order to facilitate producing records efficiently and affordably. Mr. Quemere may wish to narrow the parameters or include 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) (an agency or 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

Captain Richard Russo SPR24/0047 Page 4 January 19, 2024 would enable the agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Department is ordered to provide Mr. Quemere with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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: Andrew Quemere