Randy Gagnon v. Dracut, Town of - Police Department (SPR 20241447)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 20, 2024 SPR24/1447 Peter Bartlett Chief of Police Dracut Police Department 110 Loonhill Road Dracut, MA 01826 Dear Chief Bartlett: On May 13, 2024, this office received your petition on behalf of the Dracut Police Department (Department) seeking permission to charge for time spent segregating or 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, Randy Gagnon. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On April 30, 2024, Mr. Gagnon requested “[d]ates of employment, salary, position of all Dracut Police[.]” 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). 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) 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 Peter Bartlett SPR24/1447 Page 2 May 20, 2024 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 “authorization to charge a rate of $25 per hour for actual time spent by the Department to search for, compile, segregate, redact, and reproduce the requested records,” and provides the following information: Mr. Gagnon’s request requires the department to research our personnel management software and these records will contain personal information or other information protected by exemption (c) of the Public Records Law… Personal information includes driver’s license numbers, or similar personal information, such as an officer’s private citizen’s cellular telephone number, may be withheld under exemption (c) if the public interest in the disclosure of such information does not outweigh the privacy interests… The essential fact here is not that this exemption applies, but rather that each of these records must be reviewed to determine whether the exemptions to the Public Records Law permit withholding or redacting such records. The Department cannot merely provide the requester with all of the potentially responsive records. The Department must perform this necessary review… Mr. Gagnon’s request is for a commercial purpose because he is clearly seeking to obtain names and addresses of Dracut Police Officers to

Chief Peter Bartlett SPR24/1447 Page 3 May 20, 2024 further his online business platform M.A.Aaudit on YouTube.com. It is not in the public interest for the Department to spend four hours segregating and redacting records for the commercial benefit of Mr. Gagnon’s private online platform. For this reason, the Department requests that the Supervisor allow the Department to charge for time spent segregating and redacting potentially responsive records. The term “commercial purpose” as used in this section shall mean: the sale or resale of any portion of the public record or the use of information from the public record to advance the requester’s strategic business interests in a manner that the requester can reasonably expect to make a profit, and shall not include gathering or reporting news or gathering information to promote citizen oversight or further the understanding of the operation or activities of government or for academic, scientific, journalistic or public research or education. G. L. c. 66, § 10(d)(ix). Based on the Department’s response, it is unclear how this request was made for a commercial purpose. However, 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. Conclusion Accordingly, I find the Department has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the Department may assess a fee for segregation and redaction. Additionally, I encourage the parties to communicate further to enable the Department to provide records in an efficient and affordable manner. Please note, Mr. Gagnon 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: Randy Gagnon