Dugan Arnett v. Lynn, City of - Police Department (SPR 20241188)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 25, 2024 SPR24/1188 Lieutenant Robert Avery Records Division - Keeper of Records Lynn Police Department 300 Washington Street Lynn, MA 01902 Dear Lieutenant Avery: On April 19, 2024, this office received your petition on behalf of the Lynn Police Department (Department) requesting 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, Dugan Arnett, of the Boston Globe. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On April 5, 2024, Mr. Arnett requested the following records: [1] Any/all records that depict, define, or are otherwise sufficient to show the number of confidential informants currently registered with the Lynn Police Department. This includes, but is not limited to, logs, master files, spreadsheets, databases, or other filing mechanisms for these records[;] [2] All Lynn Police Department Confidential Informant Personal History Reports filed from January 1, 2019, and December 31, 2023. These forms are outlined in the Lynn Police Department Manual, Policy No. 37, regarding the use of confidential informants[;] [3] All Lynn Police Department Confidential Sources of Information Agreements filed from January 1, 2019, to December 31, 2023[;] [4] All Lynn Police Confidential Source Contact Reports filed from January 1, 2019, to December 31, 2023[;] [5] All Lynn Police Department Confidential Fund Expenditure Vouchers filed from January 1, 2019, to December 31, 2023[;] 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

Lieutenant Robert Avery SPR24/1188 Page 2 April 25, 2024 [6] All executive summaries “of the previous six month activities ... prepared by the Captain and forwarded to the Chief and Deputy Chiefs,” completed from January 1, 2019, to December 31, 2023, as outlined in Lynn Police Department Manual, Policy No. 37.5.2.2.4 regarding confidential informants[;] [7] All twice-annual audits of the Confidential Funds Accounts conducted from January 1, 2019, to December 31, 2023, as outlined in Lynn Police Department Manual, Policy No. 37.9.1.2 regarding confidential informants. 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. 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).

Lieutenant Robert Avery SPR24/1188 Page 3 April 25, 2024 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). Fee in Excess of $25.00 per Hour In its petition, the Department is seeking approval “to authorize the Lynn Police Department to impose a charge of $7,211.64 to respond to the instant request…” Additionally, the Department requests permission “to impose a fee of $4,206.03 which represents the regular hourly salary ($73.79) of Captain Kelly…” The Department provides the following in support of its request to charge fees in excess of $25.00 per hour: [T]he requester is seeking detailed records regarding the use of confidential informants by the Lynn Police Department…[N]ot all members of the Lynn Police Department are authorized to have access to records relating to a confidential informants. It is anticipated that only Officers with a rank of Captain or above would be authorized to access and review these records. … [T]he chief of the Lynn Police Department has identified Captain Christopher Kelly as the person with the best ability to respond to this request in a timely and efficient manner. This would necessarily result in the inability of a Captain to perform his normal investigatory and law enforcement duties that are assigned on a day to day basis. In fact, it is likely that the Captain will not be able to ignore his normal day to day activities and responsibilities and will be required to perform searches, segregation and redaction functions on an overtime basis at significant cost to the City of Lynn taxpayers. … [C]aptain Kelly’s overtime rate is $126.52 per hour. Captain Kelly anticipates that he will be required to expend approximately 59 hours producing the requested records. Given that public officials have a duty to respond to public records requests, I find the Department has not met its burden to explain how the request could not prudently be completed without assessing an overtime rate.

Lieutenant Robert Avery SPR24/1188 Page 4 April 25, 2024 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. Arnett. Conclusion I find that the Department has not 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). Further, this office encourages Mr. Arnett and the Department 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 Department must provide a response to Mr. Arnett within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Please note, Mr. Arnett 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: Dugan Arnett