Tristan Ashlock v. Rowley, Town of - Police Department (SPR 20240539)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 23, 2024 SPR24/0539 Joy C. Stanton Executive Assistant to the Chief of Police Rowley Police Department P.O. Box 365 Rowley, MA 01969 Dear Ms. Stanton: On February 20, 2024, this office received your petition on behalf of the Rowley Police Department (Department) seeking 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, Tristan Ashlock. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On February 15, 2024, Mr. Ashlock requested “Email Correspondence between Police Chief Scott Dumas and Officers Sergeant Matthew Ziev and John Raffi between the dates of 01/01/2023 and 01/05/2024.” 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. 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

Joy C. Stanton SPR24/0539 Page 2 February 23, 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 the fee of $190.00 to cover the IT contractor costs necessary to comply Mr. Ashlock’s request” and provides the following in support of its request: [A]lthough [I] am the lowest paid employee who has the necessary skills to complete the search and segregation of paper records or electronic records maintained in [our] records management system, [I] do not have access or the ability to search the electronic email server, which would be necessary in order to comply with this request. … [F]urther, the Rowley Police Department, nor the Town of Rowley, employs any IT personnel capable of performing this task, Rather, the Town and Police Department

Joy C. Stanton SPR24/0539 Page 3 February 23, 2024 contract with an IT company, PRS Group, Inc…[A]s a result of this request, [I] contacted PRS Group President Rick Samuelson and was advised that they will charge a fee of $95 per hour, and having been provided the information in Mr. Ashlock’s records request, it will take approximately two (2) hours to satisfy this request. Conclusion 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 assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). In light of the factors in G. L. c. 66, § 10(d)(iv), I find the Department may assess a fee limited to $75.00 per hour for the IT personnel search. Further, this office encourages Mr. Ashlock and the Department continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii). 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 and how the redactions are required by law. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Department must provide a response to Mr. Ashlock within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Ashlock may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Mr. Ashlock 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: Tristan Ashlock