Todd Wallack v. Lexington, Town of - Police Department (SPR 20241730)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 25, 2024 SPR24/1730 Donna Dutton Administrative Assistant Lexington Police Department Records Division 173 Bedford Street Lexington, MA 02420 Dear Ms. Dutton: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Lexington 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 May 17, 2024, Mr. Wallack requested, “[a] copy of your log of public records requests since Jan. 1, 2019. If your log is only readily available for a more recent period, please provide the log for that more recent period instead.” In a May 29, 2024 email to the Department, Mr. Wallack clarified his request and stated, “... the log with names and dates requested. We’ve received other logs without redactions. What kinds of redactions need to be made?” The Department responded on May 20, 2024, May 28, 2024, May 29, 2024, and June 12, 2024. Unsatisfied with the responses, Mr. Wallack petitioned this office and this appeal, SPR24/1730, was opened as a result. Subsequently, Mr. Wallack appealed the Department’s June 12, 2024 response. 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 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

Donna Dutton SPR24/1730 Page 2 June 25, 2024 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 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). 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Department’s May 20th, May 28th, May 29th, and June 12th Responses In its May 20, 2024 and May 28, 2024 responses, the Department requested clarification of the requested records. In its May 29, 2024 response, the Department advised, “[t]here would be a lot that will require redactions: Dates of birth, phone numbers, addresses (depending on cases) DCF requests, Senior Service requests (which would possibly include personal information on a patient) Medical information etc. I have on average 500 requests per year, this will be a lengthy undertaking and we would be charging $25 per hour for anything that goes over the 2 hours allotted for Municipality. I no longer have the 2019 log as that has been destroyed per Massachusetts Destruction Laws, but I do have 2020‐2024. I will get back to you on price and estimate as soon as I can.” In its June 12, 2024 response, the Department provided a fee estimate of $950.00 and stated that it would take appropriates 40 hours spread over several weeks less 2 hours of free time = 38 weeks at $25 per hour would be $950.00. Current appeal In his appeal dated June 12, 2024, Mr. Wallack states “...the department did not provide a fee estimate within 10 business days or petition the Supervisor of Records to charge for segregation of records.” 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).” Where Mr. Wallack submitted a public records request on May 17th and the Department provided a fee estimate on June 12th, I find it is unclear whether the Department complied with G. L. c. 66, § 10(e). Specifically, the Department must demonstrate

Donna Dutton SPR24/1730 Page 3 June 25, 2024 whether it provided a response to Mr. Wallack’s request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request. Conclusion Accordingly, the Department is ordered to provide Mr. Wallack with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 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. Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack