Blue POV v. Leominster, City of - Police Department (SPR 20240473)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 16, 2024 SPR24/0473 Sergeant Matthew Fallon Leominster Police Department 116 Central Street Leominster, MA 01453 Dear Sergeant Fallon: On February 12, 2024, this office received your petition on behalf of the Leominster Police Department (Department) seeking permission to charge for time spent segregating and redacting and a waiver of statutory limits to 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, Blue POV. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On January 30, 2024, the requestor requested “…[a]ll bodycam footage for the arrest of [an identified individual] arrested on July 21, 2023 for A&B on police officer…” 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 determination that this request was not made for a commercial purpose. 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

Sergeant Matthew Fallon SPR24/0473 Page 2 February 16, 2024 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). Petition to Assess Fees In its petition, the Department requests permission to “charge for the first two hours (and any additional hours) it may take to comply with this request for body camera footage” and provides the following in support of its request: [O]fc. McKenna’s narrative indicates that Wayne Lemieux was examined by medial staff and Wayne’s prescription medications were inventoried by Ofc. McKenna and a paramedic. I do not know the extent of the examination or inventory that occurred on scene, as I would have to review all the footage first…I believe all this information may fall under Exemption (c), so redactions may be necessary.

Sergeant Matthew Fallon SPR24/0473 Page 3 February 16, 2024 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. The Department asks for permission to charge for the first two hours to respond to this request. Please note, this request for relief is outside the scope of authority granted to the Supervisor. See G. L. c. 66, § 10(d)(iv); G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). Consequently, the Supervisor cannot grant permission to charge for the first two hours expended to respond to this request. Fee in Excess of $25.00 per Hour In its petition, the Department is seeking approval to charge an “overtime rate of $73.89 per hour,” and provides the following in support of its request to charge fees in excess of $25.00 per hour: [W]e do not have an employee available to process body camera footage public records requests during regular hours. … Sgt. Matthew Fallon, [is] the only one at our police department capable of compiling, segregating, redacting, and copying body camera footage. Court Liaison is [his] full-time position, so requests for body camera footage must be processed by [him] when [he is] available during overtime. There is no time in [his] regular schedule as Court Liaison to segregate, copy, and/or redact body camera videos for public records requests. In an email to the Department on February 13, 2024, the requestor objects to the Department’s petition to assess fees, arguing “…under Massachusetts law records law (d)(iii) states there is a window of 2 hours that a municipality cannot charge a fee…you did not take that into account, estimating a fee for 3 total hours, not taking away at the very least 2 hours ‘fee free’…”. Additionally, the requestor states “the fee of $73.89 an hour is excessive and would deter the average person of the public from moving forward with the request.” Given that public officials have a duty to respond to public records requests, I find the Department has not met its burden to explain how the request could not prudently be completed without assessing an overtime rate. See G. L. c. 66, § 10(d)(iv).

Sergeant Matthew Fallon SPR24/0473 Page 4 February 16, 2024 Conclusion Accordingly, to the extent the responsive records contain the exempt information as described above, the Department may assess a fee for segregation and redaction. However, the Department is limited to assessing a fee of no more than $25.00 per hour. Please note, the requestor 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: Blue POV