Samuel Sinyangwe v. Dracut, Town of - Police Department (SPR 20242169)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 6, 2024 SPR24/2169 Peter Bartlett Chief of Police Dracut Police Department 110 Loon Hill Road Dracut, MA 01826 Dear Chief Bartlett: On July 30, 2024, this office received your petition on behalf of the Dracut Police Department (Department) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, it is my understanding that the Department furnished a copy of the petition to the requestor, Samuel Sinyangwe of Muckrock News. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On July 30, 2024, Mr. Sinyangwe requested the following: [1.] [T]he total number of police use of force incidents reported from 2017-2022, separated by year[;] [2.] [T]he total number of police use of force incidents, separated by type of force and year, from 2017-2022 (for example, information that specifies the number of taser incidents in 2022, baton incidents in 2022, taser incidents in 2021, baton incidents in 2021 , etc.)[;] [3.] [T]he total number of civilian complaints against law enforcement that were reported and the total number sustained from 2017-2022, separated by year[;] [4.] [T]he total number of civilian complaints alleging law enforcement use of excessive force that were reported and the total number sustained from 2017- 2022, separated by year[;] [5.] [T]he total number of civilian complaints alleging biased policing or racial profiling that were reported and the total number sustained from 2017-2022, separated by year[;] 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

Chief Peter Bartlett SPR24/2169 Page 2 August 6, 2024 [6.] [T]he total number of civilian complaints alleging criminal conduct that were reported and the total number sustained from 2017-2022, separated by year[;] [7.] [T]he total number of officer-involved shootings from 2017-2022, both fatal and non-fatal, separated by year[;] [8.] [T]he total number of people who police used force against in 2022, broken down by race/ethnicity[.] Petitions to Assess Fees 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 (Supervisor) 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). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). 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

Chief Peter Bartlett SPR24/2169 Page 3 August 6, 2024 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). Commercial Purpose In its July 30th petition, the Department stated “MuckRock’s request is for a commercial purpose” and provides the following information in support of its argument: MuckRock’s request is for a commercial purpose because public information and the gathering of such information is their business. A Google search for MuckRock identifies a web site www.muckrock.com. According to the business’ 2022 form 990 filing the business is described as a “collaborative news site that brings together journalists, researchers, activists, and regular citizen’s to request, analyze, and share government documents making politics more transparent”. It is not in the public interest for the Department to spend eight hours segregating and redacting records for the commercial benefit of MuckRock’s online platform. For this reason, the Department requests that the Supervisor allow the Department to charge for time spent segregating and redacting potentially responsive records. Please be advised that the term “commercial purpose” as used in the Public Records Law shall mean: the sale or resale of any portion of the public record or the use of information from the public record to advance the requester’s strategic business interests in a manner that the requester can reasonably expect to make a profit, and shall not include gathering or reporting news or gathering information to promote citizen oversight or further the understanding of the operation or activities of government or for academic, scientific, journalistic or public research or education. Based on the information provided by the Department, it is unclear how the request would meet the statutory definition of “commercial purpose” within the Public Records Law. See G. L. c. 66, § 10(d)(ix); see also SPR20/2599 Determination of the Supervisor of Records (January 5, 2021). Specifically, the Department has not shown that the requested records do not include gathering or reporting news or furthering the understanding of the operation or activities of government.

Chief Peter Bartlett SPR24/2169 Page 4 August 6, 2024 Petition to Assess Fees In its petition, the Department seeks “to charge a fee for responding to a public records requests” and provides the following information in support of its request: MuckRock’s request requires the department to research our records management software, use of force documents and citizen complain forms and these records will contain personal information or other information protected by exemption (c) of the Public Records Law. Exemption (c) to the Public Records Law, M.G.L. c. 4, § 7, cl. twenty-sixth(c), protects from disclosure “personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy ... ” Personal information includes driver’s license numbers, or similar personal information, such as an officer’s private citizen’s cellular telephone number, may be withheld under exemption (c) if the public interest in the disclosure of such information does not outweigh the privacy interests. The essential fact here is not that this exemption applies, but rather that each of these records must be reviewed to determine whether the exemptions to the Public Records Law permit withholding or redacting such records. The Department cannot merely provide the requester with all of the potentially responsive records. The Department must perform this necessary review. The Department is advised that the current language of Exemption (c) prohibits its application to records related to law enforcement misconduct investigations. See G. L. c. 4, § 7(26)(c). In this case, where the requested records all appear to relate to law enforcement misconduct investigations, and given the public interest served by limiting the cost of public access to the requested records, I am unable to grant permission to charge for time spent segregating or redacting the records as described above. However, please note that this does not preclude the Department from charging for segregation and redaction that is required by law under Exemption (a). Conclusion Accordingly, I find the request does not meet the statutory definition of “commercial purpose” within the Public Records Law. Additionally, given the public interest served by limiting the cost of public access to the requested records, I am unable to grant permission to charge for time spent segregating or redacting responsive records. Please note, this determination does not preclude the Department from charging for segregation and redaction that is required by law.

Chief Peter Bartlett SPR24/2169 Page 5 August 6, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Samuel Sinyangwe