David Curtis v. North Andover, Town of - Police Department (SPR 20240497)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 22, 2024 SPR24/0497 Pamela Dempsey Records Clerk North Andover Police Department 1475 Osgood Street North Andover, MA 01845 Dear Ms. Dempsey: On February 14, 2024, this office received your petition on behalf of the North Andover Police Department (Department) seeking an extension of time to produce records and 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, it is my understanding that the Department furnished a copy of the petition to the requestor, Attorney David Curtis. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On February 5, 2024, Attorney Curtis requested, “a copy of the reports written by the individual officers for the accidents from January 29, 2024-February 4, 2024.” 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. 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

Pamela Dempsey SPR24/0497 Page 2 February 22, 2024 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. 36.06(4)(b). Extension of Time to Produce Responsive Records In its February 14, 2024 petition, the Department states that the process to prepare the records involves the following: [1.] Queuing and segregating all crash reports within a specific time period [2.] Printing each report separately – 2-4 pages [3.] Comparison of report printouts to accuracy of list of reports on cover page [4.] Scanning all reports to an electronic file and assigning file name [5.] Electronic redaction of each report and saving each report as redacted [6.] Prepare response email and sending of reports [7.] The process takes a minimum of three (3) hours to complete every week. There can be up to 45 pages or more of scanned reports with an average of 10-20 reports in any given time period. In an email to this office on February 15, 2024, the Department specifies that it is “seeking an additional 15 days response time extension[.]” In support of its petition, the Department states that “there is only one (1) Records Clerk in our Department, and to allow for any time out of the office, which may include meetings and/or vacation/sick time.” I find that in light of the need to collect and segregate the records, as well as 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)-(ii). The Department is granted an extension of 15 business days to respond to the request. Petition to assess fees 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

Pamela Dempsey SPR24/0497 Page 3 February 22, 2024 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). 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). Current Petition In its February 14th petition, the Department states that: [The Department’s] understanding is that these attorneys will continue these requests in perpetuity, and the weekly requests are strictly for marketing purposes

Pamela Dempsey SPR24/0497 Page 4 February 22, 2024 and financial gain of an independent business… there is absolutely no public interest served by these requests… I am seeking compensation on behalf of [the Department], in the amount of $25.00 per hour, and .05 per page to print each page. Additionally, in an email sent to this office on February 20, 2024, the Department states that it intends “to charge fees based on Exemption C-Privacy.” In an email sent to this office on February 21, 2024, Attorney Curtis opposed the petition. The term “commercial purpose” as used in this section shall mean: the sale or resale of any portion of the public record or the use of information from the public record to advance the requester’s strategic business interests in a manner that the requester can reasonably expect to make a profit, and shall not include gathering or reporting news or gathering information to promote citizen oversight or further the understanding of the operation or activities of government or for academic, scientific, journalistic or public research or education. G. L. c. 66, § 10(d)(ix). Based on the Department’s February 14th petition, it is my understanding that the requests made by Attorney David Curtis meet the statutory definition of “commercial purpose” within the Public Records Law. See G. L. c. 66, § l0(d)(ix); see also SPR20/2599 Determination of the ----- Supervisor of Records (January 5, 2021). Conclusion As described above, I find that the Department has established good cause for a time extension of 15 business days. Further, based on the Department’s petition and my finding that the requests are for a commercial purpose, I approve the Department’s petition to assess a fee for segregation and redaction. Please be advised, municipalities may not assess a fee for the first 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. See G. L. c. 66, § 10(d)(iii). 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).

Pamela Dempsey SPR24/0497 Page 5 February 22, 2024 Sincerely, Manza Arthur Supervisor of Records cc: David Curtis, Esq.