Katie MacRae v. Medford, City of - Police Department (SPR 20241470)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 21, 2024 SPR24/1470 Joseph W. Casey Police Lieutenant Medford Police Department 100 Main Street Medford, MA 01255 Dear Lieutenant Casey: On May 15, 2024, this office received your petition on behalf of the Medford 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, Katie MacRae. G. L. c. 66, § 10(c); G. L.c. 66, § 10(d)(iv)(2). On May 14, 2024, Ms. MacRae requested body worn camera footage of a specified incident. Petition to Assess Fees – Municipalities The Supervisor of Records (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. 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 determination that this request was not made for a commercial purpose. 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 Joseph W. Casey SPR24/1470 Page 2 May 21, 2024 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 the requestor fees of $25.00 per hour estimated at between $50.00 (2 hours).” In support of its request, the Department provides the following information: Exemption A Statutory Exemption: per MGL c.93H sect. 2 “in sure the security and confidentiality of personal information ... to protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to any resident of the commonwealth”. (i.e. personal identifying information dates of birth and or personal identification numbers provided by individuals on Body Worn Camera recordings)[.] Exemption C: “materials or data relating to a specifically named individual, the disclosure of which may constitute and unwarranted invasion of personal privacy” (i.e. the disclosure of personal medical information of a specifically identified individual,

Lieutenant Joseph W. Casey SPR24/1470 Page 3 May 21, 2024 as well as candid statements made about an individual based on the makers opinions which may be perceived as objectionable to that individual)[.] Exemption F: “Investigatory materials necessarily compiled out of the public view by law enforcement .... the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” (i.e. statements made by third parties to investigating police officers that are made candidly and out of public view that disclosure is not in the public interest, due to perceptions as objectionable information may result in the reluctance of individuals to speaking candidly with police officers where those statements would be subject to disclosure through Body Worn Camera footage and chill cooperation with police investigations)[.] 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 that, to the extent the responsive records contain the exempt information described above, the Department may assess a fee for segregation and redaction. Please note, Ms. MacRae 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: Katie MacRae