Todd Wallack v. Bridgewater, Town of - Police Department (SPR 20241946)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 19, 2024 SPR24/1946 Meredith Roselli Office Administrator Records Access Officer Bridgewater Police Department 220 Pleasant Street Bridgewater, MA 02324 Dear Ms. Roselli: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Bridgewater 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.” Prior Appeal This request was the subject of a prior appeal. See SPR24/1760 Determination of the Supervisor of Records (June 27, 2024). In my June 27th 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, SPR24/1946, 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

Meredith Roselli SPR24/1946 Page 2 July 19, 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 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 responses In its prior response on June 12, 2024, the Department gave an estimate of $375.00 and stated the following: [The] department estimates approximately 17 hours of review pertaining to [Mr. Wallack’s] records request… 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 and the fee has been approved by the Supervisor of Public Records. The search and segregation costs have been calculated using the lowest hourly rate of $31.47 which is based on the lowest paid employee who has the necessary skill to

Meredith Roselli SPR24/1946 Page 3 July 19, 2024 complete the search and segregation or $25.00, whichever is less, or the hourly rate allowed by the supervisor of public records. To comply with your request, it will take approximately 17 hours of search and segregation time, based upon the following: Reading and Segregating each individual record to determine which records are releasable based on Public Records Law as well as redacting any Records necessary. The total number of hours charged will be 15 hours X $25.00, as Public Records Law restricts us from charging for the first two (2) hours of search. On June 13, 2024, the Department sent an email containing additional information which stated, “[t]he Bridgewater police department has received approximately 7,500 records requests from multiple agencies, as well as private citizens between the years 2019 and 2024. Our public records request logs contain the names of individuals making requests, the names of individuals whose records are being requested, including minors, private addresses, the reasons for requests, Docket numbers, criminal CORI protected information such as sexual assault, domestic violence, LTC information and witness information to track reasons for denials, exemptions, and redactions. For this reason, each log entry must be scrutinized, and redactions applied when necessary. We are a department which employs one specified RAO for a town with a population of approximately 28,900. For these reasons, we have placed a reasonable estimate of 17 hours for the time necessary to appropriately review and apply deliberate attention/process to each entry.” In its July 8, 2024 response, the Department stated the following: [The Department is] outlining the specific exemptions that will need to be reviewed, withheld, and/or redacted from our public records log: [CORI] In particular, G.L. c. 6, sections 167-178B… [DOMESTICS]: In particular, G.L. c. 41, section 97D… … Our BPD records log contains arrest information and Domestic violence victim information, with specific names to track the specific reasons for redacting or withholding records from a requestor. Exemption (c)… Our records log contains medical files and or personal information. It lists specific medical reasons; IE Overdoses, Suicide, OUI, and specific names in log descriptions for the purposes of tracking reasons for withholding /redacting information. Exemption (f)… Our records log contains specific names of individuals involved in investigations, along with names of witnesses. The purpose of which is to track the specific reasons for withholding/Redacting records from a requestor.

Meredith Roselli SPR24/1946 Page 4 July 19, 2024 Subsequent to the opening of this appeal, on July 11, 2024, the Department stated, “[t]he department has outlined clearly, in our most recent appeal correspondence, the specific exemptions that will need to be redacted that make the additional time spent necessary, as well as the reason for the fee, as that information is included in our public records log.” Current appeal In his appeal, Mr. Wallack states, “[t]he statutes the police department cited do not apply to the records in this case. I am merely seeking a log of public records requests.” In response to the Department’s July 11th email, Mr. Wallack states, “The department did not petition the Supervisor for permission to charge to segregate records under [Exemptions (c) and (f)]… The department’s summary of the [CORI] statute is incorrect. The current version of the statute restricts access to criminal reports compiled by DCJIS. The statute says nothing about restricting access to public records logs or public records requests… The department notes that MGL c. 41, section 97D requires law enforcement agencies to keep the following information confidential: ‘All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse.’ This is accurate. However, I am not seeking police reports or related communications between investigators and victims reporting sexual or domestic violence. I am seeking a log of public records requests from members of the public. Therefore, the statute does not apply to the records in this case.” Although the Department has estimated that the process of compiling, reviewing, and preparing requested records requires 17 hours to produce responsive records, 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. It is also uncertain from the Department’s response how many minutes per page the Department requires to segregate and/or redact the records. 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, although the Department claims that it is assessing a fee for redactions under Exemptions (a), (c), and (f), it is unclear how the Department can assess a fee for redactions under Exemptions (c) and (f) in this matter. Under 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). I am not aware that the Department has submitted a petition under G. L. c. 66, § 10(d)(iv). As such, although the Department may assess a fee for redactions required by law as in Exemption (a), it is uncertain whether the fees include time to redact records under Exemptions (c) and (f). The Department must clarify this.

Meredith Roselli SPR24/1946 Page 5 July 19, 2024 Further, the Department indicated in its June 12th response that it will charge a fee for “reading[.]” However, it is unclear how the Department may assess a fee for reading under G. L. c. 66, § 10(d)(iii). I find the Department must provide additional information explaining how this task, constitutes time to search for, compile, segregate, redact, or reproduce records and how it is chargeable under G. L. c. 66, § 10(d)(iii). 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 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. Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack