Michael MacCurtain v. Whitman, Town of - Police Department (SPR 20241540)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 4, 2024 SPR24/1540 Melissa Madden Records clerk Whitman Police Department 20 Essex Street Whitman, MA 02382 Dear Ms. Madden: I have received the petition of Michael MacCurtain appealing the response of the Whitman Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 8, 2024, Mr. MacCurtain requested, “[a]ll emails and phone text messages from [an identified individual] … and [an identified individual]… from April 2nd, 2024 to April 8th, 2024… printed.” The Department responded on April 23, 2024. Unsatisfied with the Department’s response, Mr. MacCurtain petitioned this office and this appeal, SPR24/1540, 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 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

Melissa Madden SPR24/1540 Page 2 June 4, 2024 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). The Department’s April 23rd fee estimate In its April 23, 2024 fee estimate, the Department identified approximately 700 documents in response to the request and provided a fee estimate of $1,493.33. The Department estimates there will be 50 records per day per individual. For the requested 7 day period, the Department anticipates 700 responsive records. Further, the Department explains as follows: … [W]e estimate that it will take at least 5 minutes per record to fully search for, compile, review, segregate, redact, and reproduce each record in accordance with applicable law… Although this will be a fluid process and may vary for each particular record, it will essential be broken down into a search/compilation step, a segregation/redaction step, and a reproduction step, because we would search/compile at the same time and segregate/redact at the same time. We estimate the time will be comprised on average of approximately 30% search and compilation time, 50% segregation time, 10% redaction time, and 10% reproduction time for each record. For the 700 estimated total records, it would take a total of 58.33 hours of total employee time … for a total … fee of $1,458.33. In addition … there will be a fee of $0.05 per page …, for an estimated printing fee of $35.00. As such, the total initial fee is $1493.33. In its response, the Department stated, “…because your request seeks communications involving [these two identified individuals]..., several confidentiality statutes are likely to apply to some of the requested records prohibiting their release…. As a result, the records would be exempt from disclosure by statute specifically or by necessary implication under M.G.L. c 4, §7(26)(a) and would have to be withheld or redacted prior to production.” The Department cited the following statutes under which it believes redactions will be required to be made: M.G.L. c.6, § 167 et seq; M.G.L. c. 41, § 97D, M.G.L. c. 41, § 98F; and M.G.L. c. 209A §8. In addition, the Department claimed redactions will be necessary pursuant to attorney-client privilege and/or attorney work-product.. Further in its response, the Department states additional materials may require redaction under Exemptions (c) for personnel and privacy, Exemption (f), Exemption (d) attorney-work product, and Exemption (n). However, the Department asserts, “[g]iven the nature of these records and the number of potentially applicable confidentiality statutes, we anticipate effectively all of the segregation and redaction process will be for information that is covered by Exemption (a) and is required by law; however, to the extent there are any segregation/redactions not required by law, the Department will not charge for the related segregation/redaction time.”

Melissa Madden SPR24/1540 Page 3 June 4, 2024 With respect to the hourly rate, the Department asserts: The cost of responding to a records request is calculated based on the time required for Department employees to search for, compile, segregate, redact or reproduce a record, and the hourly rate for such time is capped at Twenty-Five Dollars ($25.00) per hour…. In the most recent decennial U.S. Census, the Town of Whitman had a population of 15,121 and, as such, the Department may charge a fee for all time involved in responding to your request.... [T]he lowest paid employee of the Department who could continue to search for, compilation, review, segregation, redaction and reproduction of records and make judgments as to which information is public and which information is exempt and must be redacted would be a member of the Department’s central office staff, all of whom are compensated at rates exceeding $25.00 per hour. As such, any further time spent completing the response process will be charged at a rate of $25.00 per hour. The Department indicates that it projects 10% of the estimated time will be spent on reproduction of records. However, it is unclear why the Department anticipates requiring 5.83 hours or 30 seconds per record to reproduce the responsive records. The Department must provide additional information regarding the tasks involved in reproducing the records. Further, it is uncertain how the Department requires 30% of the time to search for and compile the responsive records. The Department must explain the tasks involved in the searching and compiling of the records responsive to the request. Further, it is uncertain how the Department apportions 60% of the assessed time to segregate and/or redact the records. Particularly, although the Department states that it requires “. . . at least 5 minutes per record to fully search for, compile, review, segregate, redact, and reproduce each record[,]” it is not clear how many pages there are in each record, or if this pertains to 700 pages as opposed to documents. Neither it is clear from the Department’s response, why it would need 5 minutes to prepare each page of the 700 documents. The Department must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). I encourage Mr. MacCurtain and the Department to communicate further in order to facilitate producing records efficiently and affordably. Mr. MacCurtain may wish to include additional 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). For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the $1493.33 fee assessed in its April 23rd estimate is consistent with G. L. c. 66, § 10(d).

Melissa Madden SPR24/1540 Page 4 June 4, 2024 Conclusion Accordingly, the Department is ordered to provide Mr. MacCurtain with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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. Mr. MacCurtain may appeal the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Michael MacCurtain