Shelby Lee v. Easthampton, City of - Police Department (SPR 20242035)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 31, 2024 SPR24/2035 Dennis R. Scribner Deputy Chief of Police Easthampton Police Department 32 Payson Avenue Easthampton, MA 01027 Dear Deputy Chief Scribner: I have received the petition of Shelby Lee appealing the response of the Easthampton 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 July 1, 2024, Shelby Lee requested the following: [1.] Any and all records, including merchant/retailer receipts, pertaining to the purchase or acquisitions of motor vehicles, motor vehicle parts, and motor vehicle accessories by the EPD on and after January 1, 2023. [2.] Any and all current vehicle inventory records, including electric and non- motorized vehicles. [3.] Any and all reports pertaining to vehicle collisions in which any EPD owned or operated vehicle was involved. This includes but is not limited to all records of collisions themselves, all repair diagnostic and estimate records, and work orders and records for repairs made on and after January 1, 2023. The Department responded on July 16, 2024, providing a fee estimate. Objecting to the fees, Shelby Lee petitioned this office, and this appeal, SPR24/2035, 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

Dennis R. Scribner SPR24/2035 Page 2 July 31, 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 July 16th Fee Estimate In its July 16, 2024 response, the Department provides a total fee estimate of $75.00, and provides the following information in support of its estimate: The Department is in possession of hundreds of potentially responsive documents to [the] request, to include vehicle maintenance records, receipts, purchase orders, contracts, work orders, equipment expenditures, invoices, and vehicle crash reports for the Easthampton Police fleet. With minimal exception, the extensive work to search, review, segregate and copy the aforementioned documents will require a Department employee to hand- search, gather, review, and separate hardcopy records, and compile documents

Dennis R. Scribner SPR24/2035 Page 3 July 31, 2024 spanning the course of one and one-half (1.5) years. The records responsive to [the] request are bountiful as they pertain to an entire fleet of police vehicles that operate around the clock, and the number of responsive documents is voluminous. This request cannot be fulfilled simply through the extraction of information from an existing database, therefore it is the Department’s assertion that it does in fact impose a burden that exceeds what is required under Public Records Law. . . . In this instance, the lowest paid individual capable of performing such work is the Easthampton Police Department’s Office Manager and the hourly rate for such employee exceeds $25.00, which is the maximum allowed under the law. . . . To fulfill [the] request, which is expansive, the Department estimates that it will reasonably take three (3) hours - to search, segregate, review, separate, and copy responsive documents. As such, the good faith fee estimate to fulfill your request is: Three (3) hours x $25 per hour (maximum allowed under Public Records Law) = $75.00 Please note that the Department will waive the photocopying fee of five cents ($0.05) per page for this request. Further, the Department will provide you with records responsive to this request within fifteen (15) business days from receipt of the estimated fee payment of $75.00[.] In its July 16th fee estimate, the department indicates that it intends to “segregate ... the aforementioned documents.” Please be advised that in accordance with the Public Records Law, 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 is advised that information that is “required by law” to be segregated or redacted is found in statutes that explicitly indicate that certain records or information are not public records. Some common examples are the Criminal Offender Record Information (CORI) Act (G. L. c. 6, § 167), and laws regarding the confidentiality of domestic violence records (G. L. c. 41, § 97D; G. L. c. 41, § 98F; G. L. c. 209A, § 8). These statutes operate through Exemption (a) of the Public Records Law. Segregation or redaction under the attorney-client privilege is also interpreted to be “required by law.” Accordingly, the Department must provide further explanation as to whether the segregation of the records described in its fee estimate is required by law. For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Department is ordered to provide Shelby Lee with a response to the request, provided in a manner consistent with this order, the Public Records Law and its

Dennis R. Scribner SPR24/2035 Page 4 July 31, 2024 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: Shelby Lee