Todd Wallack v. Northampton, City of - Police Department (SPR 20241928)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 19, 2024 SPR24/1928 Jennifer DiCarlo Records Division Assistant Northampton Police Department 29 Center Street Northampton, MA 01060 Dear Ms. DiCarlo: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Northampton 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 your log of public records requests since Jan. 1, 2019. If your log is only readily available for a more recent period, please provide the log for that more recent period instead.” Prior Appeals This appeal was the subject of prior appeals. See SPR24/1637 Determination of the Supervisor of Records (June 6, 2024) and SPR24/1741 Determination of the Supervisor of Records (June 24, 2024). In my June 24th determination, I found that the Department must provide further details regarding its fee estimate. The Department responded on July 8, 2024. Unsatisfied with the response, Mr. Wallack petitioned this office and this appeal, SPR24/1928, was opened as a result. Fees - Municipalities 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. 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). 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

Jennifer DiCarlo SPR24/1928 Page 2 July 19, 2024 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 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Department’s July 8th Fee Estimate In its July 8, 2024 response, the Department provided additional information to support its fee estimate of $866.16, and stated the following: Record search review and segregation 30 hours @ $23.32 = $699.60 Record redaction 10 hours @ $23.32 = $233.20 Less 2 hours ($46.64) Total cost $866.16  an estimated 11 pages per month over 65 months that need to be searched compiled and segregated and redacted where required by law = 715 page of logs.  37 minutes per month to search for compile and redact where required by law...  37 minutes per month x 65 months = 2,405 minutes (40.08 hours).  40 hours – 2 hours (first 2 hours free) = 38 hours  38 hours x 23.32 (the hourly rate of the lowest paid employee with the skills, knowledge and ability to complete this request = $886.16. In support of the redactions, the Department cited Exemption (a) of the Public Records Law and specifically G. L. c. 6, § 167, the Criminal Offender Record Information (CORI) statute, G. L. c. 41, § 97D, G. L. c. 119, § 51F and G. L. c. 265, § 24C. Further, the Department also cited Exemption (c) of the Public Records Law in support of the redactions. Although the Department explained that redactions are necessary based upon Exemption (a), it is unclear whether the Department’s estimate includes time for segregation or redaction not required by law, as in Exemption (c). See G. L. c. 66, § l0(d)(iii) (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)). The Department must clarify.

Jennifer DiCarlo SPR24/1928 Page 3 July 19, 2024 Further, although the Department has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 38 hours of employee time, it is unclear how the Department requires this many hours to produce responsive records. Particularly, where the Department states “37 minutes per month to search for compile and redact where required by law[,]” and has “estimated 11 pages per month[,]” it is uncertain how the Department requires over 3 minutes to search for, compile, and redact each page of the records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). The Department must clarify. For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). I encourage Mr. Wallack and the Department to communicate further in order to facilitate producing records efficiently and affordably. Mr. Wallack may wish to narrow is his request or include additional 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 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