Maya Shaffer v. Hull, Town of - Law Department (SPR 20241788)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 28, 2024 SPR24/1788 James B. Lampke, Esq. Town Counsel Town of Hull - Legal Department 115 North Street, Suite 3 Hingham, MA 02043 Dear Attorney Lampke: I have received the petition of Maya Shaffer appealing the response of the Town of Hull (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 16, 2024, Ms. Shaffer requested “all IA files and complaints for every employee of the department and any related records including but not limited to any investigation into complaints.” Subsequently, I understand Ms. Shaffer narrowed her request by telephone to the following: For all active employees of the Hull Police Department, produce: 1. All Internal Affairs Files 2. Any complaints about an employee not part of an Internal Affairs Report 3. Any related records not part of an Internal Affairs Report Previous Appeal This request was the subject of a previous appeal. See SPR24/0599 Determination of the Supervisor of Records (March 8, 2024). In my March 8th determination, I ordered the Hull Police Department to provide Ms. Shaffer with a response to her request. Subsequently, the Town of Hull responded on April 22, 2024. Unsatisfied with the Town’s response, Ms. Shaffer petitioned this office, and this appeal, SPR24/1788, 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 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

James B. Lampke, Esq. SPR24/1788 Page 2 June 28, 2024 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 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 her appeal petition, Ms. Shaffer contends that the Town’s “response seeks to assess fees to provide the IA files requested. Under the law no such fees can be assessed since the town did not respond to the request in a timely manner. In fact Hull failed to respond to the initial request in 10 business days.”

James B. Lampke, Esq. SPR24/1788 Page 3 June 28, 2024 The Town’s April 22nd Response and Fee Estimate In its April 22, 2024 response, the Town suggests a modification to the scope of Ms. Shaffer’s request, and provides a fee estimate. Specifically, the Town states the following: [T]here are 2 options regarding your request: 1. In each IA case there is a final investigative report that is submitted by the investigator, and the Chief’s memo to the officer which details what the final disposition would be and his recommended discipline if applicable. Some are 1-2 pages some a bit more, but nothing more than 10-20 per individual. These the Town could prepare and sent to you via email at no cost. 2. If you still want all the paperwork with the active employee cases, for some this could be quite time consuming and costly as with added statements, documents, court transcripts, and the time it will take to redact some data it would be an estimate of 40 hours. The hourly rate for the lowest paid employee capable of doing the redaction is more than the $25.00 rate under the Public Records Law (PRL), but the Town will charge $25.00 per hour for staff time, for an estimate of $1,000.00. In addition the amount of paperwork needed to copy and send you would be in the several hundreds of pieces of paper. At an estimate of 1000 pieces of paper the paper cost alone would be $50.00. Total estimated cost for this option would be $1,050.00. 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, where Ms. Shaffer submitted a public records request on January 16, 2024, and it appears the Town provided a fee estimate on April 22, 2024, I find it is unclear whether the Town complied with G. L. c. 66, § 10(e). Specifically, in order to assess fees, the Town must demonstrate whether it provided a response to Ms. Shaffer’s request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request. In its April 22nd response, the Town also suggest a modification to the scope of Ms. Shaffer’s request. This office encourages Ms. Shaffer and the Town to continue to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a 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 municipality to produce the records sought more efficiently and affordably). Conclusion Accordingly, the Town is ordered to provide Ms. Shaffer with a response to the request,

James B. Lampke, Esq. SPR24/1788 Page 4 June 28, 2024 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. Sincerely, Manza Arthur Supervisor of Records cc: Maya Shaffer