Mark Hourihan v. Lynn, City of - Police Department (SPR 20241648)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 17, 2024 SPR24/1648 Lieutenant Robert Avery Lynn Police Department 300 Washington Street Lynn, MA 01902 Dear Lieutenant Avery: I have received the petition of Live Boston appealing the response of the Lynn 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 6, 2024, Live Boston requested “the BWC footage from the primary responding officers who went to the call for service (shooting/shots fired) on Tremont Street around 8:30pm ... on Dec 26, 2023.” Previous Appeal This request was the subject of a previous appeal. See SPR24/1064 Determination of the Supervisor of Records (April 25, 2024). In my April 25th determination, I ordered the Department to clarify its claims under Exemption (f) for withholding responsive records. Subsequently, the Department responded on May 20, 2024, providing a fee estimate. Objecting to the fees, Mr. Hourihan appealed, and this case was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian 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 SPR24/1648 Page 2 June 17, 2024 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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. 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 Appeal In his appeal petition, Mr. Hourihan contends the following: The department did not provide what we believe is an itemized, good faith estimate. Additionally, the RAO did provide a prompt response within the 10 day window following the determination, thus we also believe that no fee may be charged under the public records law. Also, in the fee assigned, the department states, for “prepping and redaction” but does not specify under what law these must be redacted, which directly contradict the updated fee regulation. G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” In this case, Mr. Hourihan submitted his request on April 6, 2024, and the Department initially responded on April 8, 2024 by citing Exemption (f) of the Public

Lieutenant Robert Avery SPR24/1648 Page 3 June 17, 2024 Records Law for withholding responsive records. Where the Department responded within 10 days under G. L. c. 66, § 10(b), I find the Department may assess a fee to produce responsive records. The Department’s May 20th Response In its May 20, 2024 response, the Department provides a fee estimate, stating that “[t]he body camera video will cost $200.00 ($25 per hour, 10 hours, first 2 hours free of charge) for prepping and redaction costs.” Based on the Department’s May 20th response, it is unclear why the Department requires 10 hours to provide the responsive records. Additionally, please note that under the Public Records Law, a municipality may assess fees to search for, compile, segregate, redact or reproduce records. See 950 CMR 32.07 (2)(i). Consequently, it is unclear what tasks the Department is referring to as “prepping” in its fee estimate. The Department must provide further details regarding the tasks involved and what each task entails, including the time it is allocating to compiling, segregating, redacting and reproducing the requested records. Additionally, the Department must confirm whether the hourly rate being used is equal to or less than that of the lowest paid employee with the necessary skills to perform the tasks. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Further, in accordance with the Public Records Law, 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). The Department is advised that information that is “required by law” to be segregated or redacted is found in statutes that explicitly indicate that certain records or information are not public records. Some common examples are the student record statute (G. L. c. 71, § 34D), the Criminal Offender Record Information (CORI) Act (G. L. c. 6, § 167), and laws regarding the confidentiality of domestic violence records (G. L. c. 41, § 97D; G. L. c. 41, § 98F; G. L. c. 209A, § 8). These statutes operate through Exemption (a) of the Public Records Law. Segregation or redaction under the attorney-client privilege is also interpreted to be “required by law.” Accordingly, the Department must provide further explanation as to whether the redactions described in the fee estimate are required by law. For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Department is ordered to provide Mr. Hourihan 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

Lieutenant Robert Avery SPR24/1648 Page 4 June 17, 2024 office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Mark Hourihan