Thomas Hemmendinger v. Groton Police Department (SPR 20241140)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 22, 2024 SPR24/1140 Jessica Watson Records Access Officer Groton Police Department 99 Pleasant Street Groton, MA 01450 Dear Ms. Watson: On April 16, 2024, this office received your petition on behalf of the Groton Police Department (Department) requesting permission to charge for time spent segregating or redacting responsive records 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, Thomas Hemmendinger, of Massachusetts Association of Criminal Defense Lawyers. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On April 5, 2024, Mr. Hemmendinger requested a “[c]opy of Groton Police Department’s Rules and Regulations, and/or Department policies and procedures or special orders including the most recent updates.” 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, § 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

Jessica Watson SPR24/1140 Page 2 April 22, 2024 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). Current Petition In its petition, the Department requests permission to “charge the following fees associated with the search and segregation of the requested records.” In support of its request, the Department provides the following information: [W]ith respect to the request, [we] have the following records: The Groton Police Department’s Rules and Regulations including Department policies, procedures, and special orders. However, [we] will be required to make certain redactions to those records in accordance with the Public Records Law. For example, Exemptions (b) and (n) to protect the procedures in which our officers respond to

Jessica Watson SPR24/1140 Page 3 April 22, 2024 bank robberies, bomb threats, etc., that would threaten the internal personnel practices of our Department if the information were released. 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 segregation or redaction. 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. Fee in Excess of $25.00 per Hour In its petition, the Department is seeking approval “to charge a fee of $30.08 for the search and segregation charges associated with this request and response,” and provides the following in support of its request to charge fees in excess of $25.00 per hour: [T]he lowest paid Town employee who has the necessary skill to complete the search and segregation is the Senior Administrative Assistant to the Chief of Police/Records Access Officer whose normal hourly rate is $30.08. … [T]his is due to the fact that the Records Access Officer is the only employee in the Department besides supervisors who has completed the proper training and certification to ensure that all requested records abide by the Massachusetts Public Records Law and their Exemptions. In light of the above, it is unclear how the request could not be prudently completed without a fee in excess of $25.00 per hour. Consequently, the Department has not met its burden to demonstrate why it must charge in excess of the statutory limit of $25.00 per hour in responding to the request made by Mr. Hemmendinger. Conclusion Accordingly, as described above, to the extent the responsive records contain the exempt information described above, the Department may assess a fee for segregation and redaction. However, I find that the Department has not met its burden to assess fees in excess of $25.00. Further, this office encourages Mr. Hemmendinger 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.) When preparing a fee estimate for the provision of the requested records, the Department is advised to provide a detailed explanation to the requestor detailing why the amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The

Jessica Watson SPR24/1140 Page 4 April 22, 2024 Department must provide a response to Mr. Hemmendinger within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Please note, Mr. Hemmendinger 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: Thomas Hemmendinger