Renee LaPlume v. Ayer, Town of - Police Department (SPR 20240993)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 16, 2024 SPR24/0993 Brian Gill Chief of Police Ayer Police Department 54 Park Street Ayer, MA 01432 Dear Chief Gill: I have received the petition of Renee LaPlume appealing the response of the Ayer Police Department to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 4, 2024, Ms. Renee requested the following records: [E]very record with my name in it[,] every record that I have made a call to you in terms of the recordings and any documentation and any police reports or notations that you make in regard to me since 2014, the record of anything that you have ever submitted into the Ayer Court. I need all of your records pertaining to me from the beginning to the present. I want the same thing all of those records for anything of anyone else’s calls regarding me or reports made regarding me anything that my name appears in, any calls or paperwork, anything that is about me, written and audio, prepared and made ready for my or another’s pick up. Additionally, on January 8, 2024, Ms. LaPlume requested all audio recordings involving her name. Prior Appeal This request was the subject of a prior appeal. See SPR24/0482 Determination of the Supervisor of Records (February 29, 2024). In my February 29th determination, I found that it was not clear from the Department’s estimate how much time is allocated to search and how much time is allocated for segregation and/or redaction of the records. Further, I found that the Department’s fee estimate lacks confirmation that the rate of $25 per hour is of the lowest paid employee who is capable of performing the task(s), and that it was unclear how the Department can assess a fee for redactions under Exemption (c). 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 Brian Gill SPR24/0993 Page 2 April 16, 2024 On March 11, 2024, the Department responded, providing a fee estimate. Unsatisfied with the Department’s response, Ms. LaPlume petitioned this office and this appeal, SPR24/0993, was opened as a result. Fees - Municipalities 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. 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 (two) 2 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 how 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). The Department’s March 11th response In its March 11, 2024 response, the Department provided 77 call records and provided a fee estimate of $925.00. In its response, the Department stated the following: Where permitted by law, however, please be advised that such records or material contained therein may be withheld or redacted under any of the exemptions to the Public Records Law, other applicable provisions of law, and/or common law privileges, such as the attorney-client privilege… Your request for 2301-751-OF has been denied in accordance with [Exemption (c)]… For the remainder of [her] request, as permitted by law, [Ms. LaPlume] will be charged for employee search time to locate and identify responsive records, at the hourly rate of the lowest paid person capable of compiling, segregating, redacting where required by law, and reproducing responsive records, in accordance with 950 CMR 32.07(2)(i). This rate shall not exceed $25.00 per hour, unless otherwise authorized by the

Chief Brian Gill SPR24/0993 Page 3 April 16, 2024 Supervisor of Records. Please note that because the Department has less than 20,000 residents, pursuant to the last Decennial U.S. Census (8,749), [she] will be charged for all hours of work associated with this request. Additionally, the Department breaks down the fee estimate as follows: [1.] Formula: (Number of Incidents X 20 minutes (Per Incident) = Total Minutes / Total Hours.) (Total Hours X $25.00/hour = Estimated Cost)  Communications Manager: 96 Incidents x 20 minutes (Per Incident) = 1,920 Minutes / 32 Hours  32 hours x $25.00/hour = $800.00 [2.] Estimated 20 Minutes per incident for Search and Segregation, Review, and Redaction.  10 Minutes to review and segregate a requested incident. o Identify the Year, Month, Date, and Time of the requested Incident o locate and identify corresponding 9-1-1 line recordings within the time frame. o locate and identify corresponding Business line recordings within the time frame. o Locate and identify corresponding radio transmissions recordings within the time frame. o Save all recordings that relate to the incident being researched.  5 minutes to review any/all audio for necessary redactions.  5 minutes to apply and save any/all redactions. [3.] Two Employees have full administrative access to the recording system.  Ayer Police Chief/ ASRECC Director… ($66.46 / hr)  ASRECC Operations Manager… ($36.35 / hr) Current Appeal In her appeal petition, Ms. LaPlume states, “[p]lease waive the fee and allow me to receive these records, free of charge, as a protected class member without a paid employment role at this time, and a long record of serving in the Commonwealth for the public good, since at least the early 90’s… I need the records to begin this process of gaining it and putting an end to the discrimination in my community that I am indisputably experiencing with great detriment to myself, bias, inequity and lack of inclusion…”

Chief Brian Gill SPR24/0993 Page 4 April 16, 2024 Fee Waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). Although the Department gives a total fee of $925, the breakdown the Department provides adds up to $800. It is unclear whether the total fee estimate is $925 as the Department states or $800 as stated in the Department’s breakdown of the fee and given in its previous response. Additionally, it is unclear why the Department requires 5 minutes per incident to redact the responsive records. The Department must clarify these matters. Further, based on the Department’s response, it unclear if it is assessing a fee for segregation or redaction under any of the exemptions in the Public Records Law or the common law attorney-client privilege. Pursuant to the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). Consequently, the Department must clarify if it is assessing a fee for redactions required by law. I encourage Ms. LaPlume and the Department to communicate in order to facilitate producing records efficiently and affordably. Ms. LaPlume may wish to narrow the parameters or include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Department must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or 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 agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Department is ordered to provide Ms. LaPlume with a response to the request, provided in a manner consistent with this order, the Public Records Law and its

Chief Brian Gill SPR24/0993 Page 5 April 16, 2024 Regulations within 10 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. Sincerely, Manza Arthur Supervisor of Records cc: Renee LaPlume Robert Mackie