Todd Wallack v. Ludlow, Town of - Police Department (SPR 20241895)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 17, 2024 SPR24/1895 Lieutenant Michael Brennan Ludlow Police Department 612 Chapin Street Ludlow, MA 01056 Dear Lieutenant Brennan: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Ludlow 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 June 14, 2024, Mr. Wallack requested a “copy of [the Department] log of public records requests since Jan. 1, 2019[.]” The Department responded on June 14, 2024, providing a fee estimate. Unsatisfied with the response, Mr. Wallack petitioned this office and this appeal, SPR24/1895, 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 custodian must provide the responsive 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

Lieutenant Michael Brennan SPR24/1895 Page 2 July 17, 2024 Fee estimate – 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 (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 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). The Department’s June 14th response In its June 14, 2024 response, the Department gave an estimate of $843.98, and stated the following: [T]here is a substantial amount of information (e.g. victim names, witness names, juveniles, etc.) that are contained within these logs that will need to [be] redacted in accordance with the law[.] … The lowest paid Department employee capable of searching for, compiling, segregating, redacting, and/or reproducing the responsive documents is paid at a rate of $22.21 per hour. The Department’s good faith estimate of the time required to comply with your request is at least 40 hours, which first includes reviewing and redacting necessary information. This will involve reviewing approximately 1000 pages of documents. At the cost of $22.21 per hour, less two hours, amounts to $843.98. Additionally, on July 2, 2024, the Department stated, “to be clear, redactions are required by law, relative to Exemption (a) of the Public Records Law.” Current Appeal In his appeal, Mr. Wallack states, “[t]he department said it plans to charge $843.98 to segregate the records, but did not petition the Supervisor to charge for segregation.”

Lieutenant Michael Brennan SPR24/1895 Page 3 July 17, 2024 In response to the Department’s July 2nd email, Mr. Wallack states, “I respectfully disagree…” Although the Department has estimated that the process of compiling, reviewing, and preparing the requested records for production requires 40 hours, it is unclear how the Department requires this many hours to produce the records. Specifically, it is not clear from the Department’s estimate how much time is allocated to search, and how much time is allocated for segregation and/or redaction of the records. Also, it is unclear the number of minutes that the Department must spend per page for the redactions. The Department must provide additional information regarding the tasks involved in producing these records. Accordingly, the Department must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Additionally, where the Department states that redactions are required by law, I find the Department must state the applicable statutes. Pursuant to the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). The Department must clarify. With regard to Mr. Wallack’s objections regarding the Department’s claims of redactions, please be advised that where the Department has yet to produce the records, I find that these matters cannot be addressed at this time, as the contents of these records are unclear. Once records are provided, Mr. Wallack may appeal the substantive nature of the Department’s response within ninety calendar days. See 950 C.M.R. 32.08(1). I encourage Mr. Wallack and the Department to communicate further in order to facilitate producing records efficiently and affordably. The requestor may wish to narrow the parameters or include factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Department must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or 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 agency or municipality to produce records sought more efficiently and affordably). 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 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.

Lieutenant Michael Brennan SPR24/1895 Page 4 July 17, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack