Kent DeMott v. Leominster, City of - Police Department (SPR 20240728)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 14, 2024 SPR24/0728 Sergeant Matthew Fallon Leominster Police Department 116 Central Street Leominster, MA 01453 Dear Sergeant Fallon: On March 8, 2024, this office received your petition on behalf of the Leominster Police Department (Department) seeking permission to charge for time spent segregating and 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, Kent DeMott. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). In separate requests, on February 14, 2024 and February 27, 2024, Mr. DeMott requested “…[c]omplete personnel files, including all training records and all records of any and all disciplinary actions, and any and all records related to the following [identified officers]…” The Department submitted their petition on March 8, 2024, more than ten business days after receipt of the February 14th requests. In light of the fact the Department has not demonstrated it submitted a timely petition, permission to charge for time spent segregating or redacting responsive records regarding the February 14th requests cannot be granted. 950 C.M.R. 32.06(4)(g). 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). 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 SPR24/0728 Page 2 March 14, 2024 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 “to assess a $150 fee for a public records request for training records” and provides the following in support of its request: [T]he contents of the ‘personnel file’ and disciplinary records for each officer requested, however, remain subject to withholding pursuant to Exemption (c) to

Sergeant Matthew Fallon SPR24/0728 Page 3 March 14, 2024 the Public Records Law. … [G]iven the issues presented and currently being considered by the SJC in this active case, and the absence of clear judicial interpretation of Exemption (c) as applicable to a request such as this, the Department can withhold disciplinary records requested by Mr. DeMott. … For request 1, [we] will not provide the personnel files and disciplinary records [you] requested for the reasons outlined above by Attorney Maser. [I] estimate there to be over 1,000 training records to review for necessary redactions and then make those redactions. Some training records have personal information on them including: police officers’ social security numbers, cell phone numbers, dates of birth, and home addresses. Each record will need to be reviewed for that information. That information falls under Exemption C and O, so redactions will be necessary. 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 with respect to the February 27th request. Conclusion As described above, I find that, to the extent the responsive records contain the exempt information described above, the Department may assess a fee for segregation and redaction with respect to the February 27th request. Further, this office encourages Mr. DeMott and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 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). Please note, Mr. DeMott 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).

Sergeant Matthew Fallon SPR24/0728 Page 4 March 14, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Kent DeMott