Todd Wallack v. Needham, Town of - Police Department (SPR 20241916)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 18, 2024 SPR24/1916 Aleah Donahue Records Access Officer Needham Police Department 99 School Street Needham, MA 02492 Dear Ms. Donahue: I have received the petition of Todd Wallack, of WBUR, 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.” Previous Appeal This request was the subject of a previous appeal. See SPR24/1777 Determination of the Supervisor of Records (June 27, 2024). In my June 27th determination, I ordered the Department to revise its fee estimate or provide further explanation of how the fees are consistent with the Public Records Law. Subsequently, the Department responded on July 3, 2024, providing further explanation of its fee estimate. Objecting to the fees, Mr. Wallack again petitioned this office, and this appeal, SPR24/1916, 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). 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 SPR24/1916 Page 2 July 18, 2024 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). The Department’s June 13th and July 3rd Fee Estimate In its previous June 13, 2024 response, the Department provided a total fee estimate of $225, indicated that it was not charging for the first two hours of work, and would charge $25 per hour, which is below the hourly rate of the lowest paid individual with the necessary skills to perform the tasks. See G. L. c. 4, § 7(26). In its July 3rd response, the Department provides the following additional information in support of its fee estimate: In our response sent on 6/3/2024, we provided our most up-to-date, readily available records request log in its redacted form which contained 100 entries dating from 3/29/2024 to 6/3/2024. This took us an hour to complete. That time

Aleah Donahue SPR24/1916 Page 3 July 18, 2024 was spent going through all requests in great detail ensuring all information that is required by law to be segregated or redacted, is just that. Examples of such information include requests detailing Criminal Offender Record Information CORI (G. L. c. 6, § 167), any requests pertaining to domestic violence and sexual assault records (G. L. c. 41, § 97D; G. L. c. 41, § 98F; G. L. c. 209A, § 8), and anything covered under the Family Educational Rights and Privacy Act FERPA (20 USC § 1232g). Mr. Wallack is seeking record requests dating back 6 years, from 2019-2024. In total, this comes to approximately 3978 individual entries/requests. These entries vary in length and complexity; some are brief and to the point, while others go into fine detail and are of considerable length. All of these need to be examined thoroughly and diligently to be sure all sensitive information mentioned above is redacted in accordance with Massachusetts Public Records Law. Based on the information provided in its July 3rd response, the Department has explained that the redactions described in its fee estimate are required by law, and has explained why it will require the amount of time described in its fee estimate in order to segregate and redact the records. In light of the Department’s July 3rd response, in conjunction with its previous June 13th response, I find the Department has met its burden to explain how it has provided a reasonable fee estimate for the production of records responsive to this request. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). Conclusion As set forth above, I find the Department has met its burden in responding to Mr. Wallack’s request at this time. Any revision to the request would result in the requirement to issue a revised fee estimate. Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack