Meghan Leong v. Somerset, Town of - Police Department (SPR 20240362)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 8, 2024 SPR24/0362 Captain William Tedford Executive Officer Somerset Police Department 465 County Street Somerset, MA 02726 Dear Captain Tedford: On February 5, 2024, this office received your petition on behalf of the Somerset Police Department (Department) seeking an extension of time to produce records, permission to charge for time spent segregating or redacting responsive records, and a waiver of statutory limits on fees that may be assessed in responding to the request. 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, it is my understanding that the Department furnished a copy of the petition to the requestor, Meghan Leong. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On January 11, 2024, Ms. Leong requested: [1.] An extract of your records management system or database that includes each school-related arrest and each referral to law enforcement conducted during the 2018-2019, 2019-2020, 2020-2021, and 2021-2022 school year (up until the day the records are produced) . . .[;] [2.] If such an extract of the database in question 1 is not possible, please provide school incident reports on each school-related arrest and referral to law enforcement conducted during the 2018-2019, 2019-2020, 2020-2021, and 2021- 2022 school year (up until the day the records are produced)[;] [3.] A copy of any active standard operating procedures developed with the police department and/or other law enforcement agencies regarding police placement or activity in your corresponding school[;] [4.] Any records instructing or informing police personnel of, or otherwise describing data reporting requirements and procedures for complying with G.L. c. 71 § 37P(b)[;] [5.] The cost to the school district of assigning a school resource officer to each school [;] [6.] The total number of school resource officers and total number of guidance counselors for each school in your district for school years 2018-2019, 2019- 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 William Tedford SPR24/0362 Page 2 February 8, 2024 2020, 2020-2021[;] [7.] The total number and a brief description of 911 calls from schools in your district to local police departments conducted during the 2018-2019, 2019-2020, 2020-2021, and 2021- 2022[;] [8.] A description of the proposed budget for mental, social, or emotional health support personnel for the school district. Previous Appeal This request was the subject of a previous appeal. See SPR24/0338 Determination of the Supervisor of Records (February 7, 2024). Please refer to the determination in SPR24/0338 for analysis of this matter. Petition 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 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) must 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).

Captain William Tedford SPR24/0362 Page 3 February 8, 2024 Request for Additional Time to Produce Responsive Records In its petition, the Department requests “an additional 15 business days for this particular request.” The Department provides the following information supporting its request: [T]his request requires an extensive amount of time to search, collect, segregate and examine the requested records. … [P]lease be advised, that this department employs one records clerk who is able to fulfill this type of request. This employee is the only one that can search and compile these types of requested records. Our Department is diligently working on this request and may complete it well within the requested 15 business days extension. I find that in light of the capacity of the Department to produce the records without an extension, 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 15 business days. Petition to assess fees – Municipalities The 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 or to charge in excess of $25 an hour for the provision of public 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 understanding 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. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public

Captain William Tedford SPR24/0362 Page 4 February 8, 2024 records. 950 C.M.R. 32.06(4)(g). 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 Petition In its petition, the Department requests “permission to charge the following fees associated with the search and segregation of the requested records.” In support of its request, the Department provides the following information: [We] will be required to make certain redactions to those records in accordance with the Public Records Law. … [E]xemption (a): In particular, G. L. c. 6, sections 167-178B, and related regulations, requires that criminal justice agencies withhold any records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge. Records obtained by other departments through DCJIS may not be disseminated. Requestors shall be referred to those Departments and/or DCJIS to obtain copies of said records G. L. c. 6, § 175. … [E]xemption (c): The records requested contain information which, if disclosed, would constitute an unwarranted invasion of personal privacy and the privacy interests involved outweigh the public interests in the disclosure of that information. This will include juvenile information as well as dates of births,

Captain William Tedford SPR24/0362 Page 5 February 8, 2024 addresses, phone numbers, social security numbers and medical information. … [E]xemption (f): The above requested records contain witness information; therefore, redactions are appropriate to preserve the anonymity of voluntary witnesses. This exemption is also intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about such matters. Any and all information contained in a witness statement and/or within the investigation involving said voluntary witnesses, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness who is subject to withholding. . . . 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. Fee in Excess of $25.00 per Hour In its petition, the Department requests “the Supervisor to permit us to charge a fee of $125.65 for the search and segregation charges associated with this request and response.” In support of its request, the Department provides the following information: [T]he lowest paid employee who has the necessary skill to complete the redaction is the Keeper of Records whose normal hourly rate is $31.4123. This is due to the fact that only a select number of employees within our department are able to fulfill this type of request, those employees are the only ones that can redact these types of requested records due to training and knowledge of the Massachusetts Public Records Law. In light of the above, it is unclear how the request could not be prudently completed without a fee in excess of $25.00 per hour. Consequently, the Department has not met its burden to demonstrate why it must charge in excess of the statutory limit of $25.00 per hour in responding to the request made by Ms. Leong. Conclusion Accordingly, as described above, the Department may assess a fee for segregation and redaction and I find that the Department has established good cause for a time extension of 15 business days. However, I find that the Department has not met its burden to assess fees in excess of $25.00. Further, this office encourages Ms. Leong and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §

Captain William Tedford SPR24/0362 Page 6 February 8, 2024 10(b)(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). When preparing a fee estimate for the provision of the requested records, the Department is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Department must provide a response to Ms. Leong within five (5) business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Please note, Ms. Leong 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: Meghan Leong