Todd Wallack v. Taunton, City of - Police Department (SPR 20241757)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 26, 2024 SPR24/1757 Lieutenant John P. Joyce Public Records Access Officer Taunton Police Department 23 Summer Street Taunton, MA 02780 Dear Lieutenant Joyce: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Taunton 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 [the Department’s] log of public records requests since Jan. 1, 2019. If [the Department’s] log is only readily available for a more recent period, please provide the log for that more recent period instead.” The Department responded on June 3, 2024, providing responsive records, and providing a fee estimate for others. Objecting to the fees, Mr. Wallack 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 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 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 John P. Joyce SPR24/1757 Page 2 June 26, 2024 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. Wallack contends the following: The agency withheld a column summarizing the request and said it would charge $1,025 to provide the column (in case any information in the column needs to be redacted). The department acknowledged in a subsequent email that it is possible that nothing in the column needs to be redacted, but said it needs to charge the fee to review the column for potential redactions. The Department’s June 3rd Fee Estimate In its June 3, 2024 response, the Department provides the “Taunton Police Public Records Log from May 4, 2022 until present.” Additionally, the Department explains the following: These records include the entire Public Records Log, unredacted, minus the “Request Details” field. This field would need to be manually reviewed for potential redactions and includes over 8000 entries for the time period stated (May 4th, 2022 – present). This review would trigger a fee.

Lieutenant John P. Joyce SPR24/1757 Page 3 June 26, 2024 The Department provides a total fee estimate of $1025, and provides the following information in support of its fee estimate: The Department is required to devote more than 2 hours of time to search for, compile, segregate, redact and/or reproduce the requested records; and the segregation or redaction of records is required by law or the fee has been approved by the Supervisor of Public Records. The search and segregation costs have been calculated using the hourly rate of $25. In order to comply with your request, it will take approximately 43 hours of search and segregation time, based upon the following: 8687 Request Details line items As the Records Access Officer, I have estimated a rate of review of 200 line items per hour. 8687 divided by 200 = 43.45. 43.45 minus the statutory 2 hour exemption for municipalities over a population of 20,000 people = 41.45. I have rounded this down to 41 hours. 41 x 25 = $1025. In a telephone conversation with this office on June 17, 2024, the Department further clarified that they will spend the time described above segregating and potentially redacting the “Request Details” field, which includes summaries of the requests. Please note that, 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 reason discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fee assessed is consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Department is ordered to provide Mr. Wallack with a response to the

Lieutenant John P. Joyce SPR24/1757 Page 4 June 26, 2024 request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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