Victoria Vento v. Canton, Town of - Police Department (SPR 20240472)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 28, 2024 SPR24/0472 Helena Rafferty Chief of Police Canton Police Department 1492 Washington Street Canton, MA 02021 Dear Chief Rafferty: I have received the petition of Victoria Vento appealing the response of the Canton 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 January 16, 2024, Ms. Vento requested “access to all calls inbound and outbound from Canton Police Department between January 28, 2022 at 12pm and January 30, 2022 at 12pm.” The Department responded on January 26, 2024, asking Ms. Vento to modify the scope of her request. On January 29, 2024, Ms. Vento narrowed the scope of her request, seeking “all calls between 1/28/22 10pm and 1/29/22 10pm.” The Department responded on February 12, 2024, providing a fee estimate. Objecting to the fees, Ms. Vento appealed, and this case 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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 Helena Rafferty SPR24/0472 Page 2 February 28, 2024 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 - 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 Appeal In her appeal petition, Ms. Vento contends that [The Department] finally responded and said I would need to pay a fee for this request. Since I filed this request on January 16, 2024 and the MA law requires foia requests be fulfilled within 10 business days, I am appealing this response due to her 8-10 day response time between emails. Today [February 12, 2024] is now the 19th day. G. L. c. 66, § 10(e) Please be advised that G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where Ms. Vento submitted her request on January 16, 2024, and the Department initially responded on January 26, 2024 by seeking to modify the scope of the request under G. L. c. 66, § 10(b)(vii), and the Department then provided a fee estimate within 10 business days after Ms. Vento modified her request, I find the Department may assess a fee to produce the

Chief Helena Rafferty SPR24/0472 Page 3 February 28, 2024 responsive records. Accordingly, I will address the Department’s February 12th fee estimate below. The Department’s February 12th Fee Estimate In its February 12, 2024 response, the Department states that “the cost is approximated to be between $75 and $150,” and the Department “anticipates it will take approximately 3 hours to meet this request.” Based on the Department’s February 12th response, it is unclear why the Department requires three hours in order to respond to the request. The Department must provide further details regarding the tasks involved and what each task entails, including the time it is allocating to compiling, segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Additionally, in its response, the Department has not stated whether the hourly rate being used is equal to or less than that of the lowest paid employee with the necessary skills to perform the tasks. Further, it is unclear from the Department’s fee estimate whether the Department is assessing a fee for the first two hours of employee time to search for, compile, segregate, redact or reproduce the records. The Department must clarify these matters. Also, as noted above, 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). Accordingly, the Department must provide further explanation as to whether any segregation or redaction covered in its fee estimate are required by law. For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Department is ordered to provide Ms. Vento with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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.

Chief Helena Rafferty SPR24/0472 Page 4 February 28, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Victoria Vento