Wes Fowlks v. Boxborough, Town of - Town Clerk (SPR 20242053)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 31, 2024 SPR24/2053 Rebecca J. Harris, PhD. Town Clerk Town of Boxborough 29 Middle Road Boxborough, MA 01719 Dear Dr. Harris: I have received the petition of Wes Fowlks appealing the response of the Town of Boxborough (Town) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On June 25, 2024, Mr. Fowlks requested records “related to an incident involving my dog, [identified individuals] on June 14th, 2024[:]” [1.] Incident Reports and Documents [2.] Video and Audio Recordings [3.] Body Camera Policies [4.] Medical Records [5.] Additional Surveillance and Access Logs [6.] Additional Incident Details [7.] Dispatch Logs [8.] Officer Activity Logs [9.] Messages The Town provided a response on July 9, 2024, providing a fee estimate. Unsatisfied with the Town’s response, Mr. Fowlks petitioned this office and this appeal, SPR24/2053, 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 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

Rebecca J. Harris, PhD. SPR24/2053 Page 2 July 31, 2024 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. Att’y 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. 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). 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 how 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 Town’s July 9th Response In its July 9, 2024 response, the Town provided a fee estimate of $393.75 and stated, “[t]he Town anticipates that it may withhold or redact confidential personnel records in regards to the request for medical records pursuant to Exemption (c)… Regarding surveillance

Rebecca J. Harris, PhD. SPR24/2053 Page 3 July 31, 2024 video footage, the town may withhold and/or provide screenshots of footage pursuant to Exemption (b) and/or Exemption (n)…” Additionally, the Town breaks down its fee estimate as follows: [1.] Incident Reports and Documents: (1/2 hour) [2.] Video and Audio Recordings: (Body cams/cruiser cams 2 hours) (cell call records 2 hours) [3.] Body Camera Policies: (15 minutes) [4.] Medical Records: These documents are not subject to release, under Exemption (c): This exemption applies to “personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” [5.] Additional Surveillance and Access Logs: (badge access logs 2 hours) (video surveillance 3.5 hours); possible withholding / redacting under exemption (b) and/or (n). Under exemption (b), internal rules and practices of government units are exempt. Badge access records and the camera surveillance videos could possibly show comings and goings of personnel and if released could be used by a criminal element to reduce the likelihood of capture or to perpetuate an attack on officers or the security of the station. This information is similar to an operations plan of an event. [6.] Additional Incident Details: (1/2 hour) [7.] Dispatch Logs: (2 hours) [8.] Officer Activity Logs: (possible exemption (b), 1 hour) [9.] Messages: (2 hours) Total hours = 15.75 * $25/hr = $393.75

Rebecca J. Harris, PhD. SPR24/2053 Page 4 July 31, 2024 Although the Town has estimated that it will charge 3.5 hours for video surveillance and 1 hour for Officer Activity Logs, it is not clear from the Town’s estimate how much of this time is allocated to search, and how much time is allocated for segregation or redaction of the records. Additionally, it is unclear the number of minutes that the Town must spend per page for review of the documents listed in its fee estimate and the number of pages there are. The Town must provide additional information regarding the tasks involved in producing these records. Accordingly, the Town must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). The Town claims that it is assessing a fee for redactions under Exemptions (b), (c), and (n). However, it is unclear how the Town can assess a fee for redactions under these exemptions 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 Town has submitted a petition under G. L. c. 66, § 10(d)(iv). As such, it is uncertain whether the fees include time to redact records under Exemptions (b), (c), and (n). The Town must clarify this. Further, the Town’s fee estimate lacks confirmation that the rate per hour is of the lowest paid employee who is capable of performing the task(s), and whether the first two hours of employee time to search for, compile, segregate, redact or reproduce the records has been factored into the fee estimate. See G. L. c. 66, § 10(d)(iii). I encourage Mr. Fowlks and the Town to communicate in order to facilitate producing records efficiently and affordably. Mr. Fowlks may wish to narrow the parameters or include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Town 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 Town is ordered to provide a response to Mr. Fowlks, 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 this response to this office at pre@sec.state.ma.us.

Rebecca J. Harris, PhD. SPR24/2053 Page 5 July 31, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Wes Fowlks