Todd Wallack v. Needham, Town of - Police Department (SPR 20241777)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 27, 2024 SPR24/1777 Aleah Donahue Needham Police Department 99 School Street Needham, MA 02492 Dear Ms. Donahue: I have received the petition of Todd Wallack appealing the response of the Needham 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 13, 2024, providing numerous responsive records and 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 provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records 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

Aleah Donahue SPR24/1777 Page 2 June 27, 2024 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 that “[t]he police department provided a portion of the records, but requested $225 on June 13 to segregate the remaining records.” The Department’s June 13th Fee Estimate In its June 13, 2024 response, the Department provides a total fee estimate of $225, and provides the following information in support of its fee estimate: In order to comply with [the] request as it is currently, the total reasonable fee of $225.00 will be charged. This fee must be paid in full prior to the requested records being provided. The total fee has been calculated as follows: . . . 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. The department is authorized to charge for this work at an hourly rate equivalent to the lowest paid employee who has the skills to complete this request or $25 an hour, whichever is less. The segregation and redaction costs have been calculated using the hourly rate of $25 an hour. In order to comply with [the] request, it will take approximately 10 hours of segregation and redaction time (2 hours per year 2019-

Aleah Donahue SPR24/1777 Page 3 June 27, 2024 2023). The portion of 2024 already provided, accounted for 1 hour cost free, with one remaining. In total, 9 remaining hours multiplied by the hourly rate of $25 is $225.00. Further, in an email to this office on June 18, 2024, the office provides the following additional information: The original request ... was for 5 years worth of records OR what was readily available. In our records software, approximately 3 months are “readily available.” Beyond that, it requires more work to produce the record. Once the record is produced, it must be segregated and reviewed for necessary redaction. There are approximately 3500 records that need to be segregated, reviewed, and redacted for the remaining ... request. Our estimate for the remainder of the request is based on the amount of time the first request took us to segregate, review, and redact. Based on the Department’s responses, it is unclear why it requires the amount of time indicated above to segregate and redact the records. The Department must provide further details regarding the contents of the records and why it requires two hours per year to review them. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Further, 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 its 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. Wallack with a response to the 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.

Aleah Donahue SPR24/1777 Page 4 June 27, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack