Taylor Breaux v. Leominster, City of - Police Department (SPR 20242212)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 12, 2024 SPR24/2212 Sergeant Matthew Fallon Records Division Leominster Police Department 116 Central Street Leominster, MA 01453 Dear Sergeant Fallon: On August 5, 2024, this office received your petition on behalf of the Leominster Police Department (Department) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). On July 27, 2024, Taylor Breaux requested, body camera footage and “the case narrative” for the following incidents: [1.] [A named individual] . . . arrested on 04/11/2021. . . . Arrest location: . ..[;] [2.] [A named individual] . . . arrested on 05/10/2021. . . . Arrest location: . . .[;] [3.] [A named individual] . . . arrested on 09/25/2021. . . . Arrest location: Leominster Motor Inn[;] [4.] [A named individual] . . . arrested on 10/22/2021. . . . Arrest location: vicinity of Laurel St.[;] [5.] [A named individual] . . . arrested on 11/02/2021. . . . Arrest location: . . . Mechanic St.[;] [6.] [A named individual] . . . arrested on 12/06/2021. . . . Arrest location: . . . Hillcrest Ave.[;] [7.] [A named individual] . . . arrested on 03/14/2022. . . . Arrest location: . . . Orchard Hill Park Dr.[;] [8.] [A named individual] . . . arrested on 08/06/2023. . . . Arrest location: . . . Litchfield Pines Dr.[;] [9.] [A named individual] . . . arrested on 11/07/2023. . . . Arrest location: Leominster Hospital[;] [10.] [A named individual] . . . arrested on 02/17/2024. . . . Arrest location: Marshalls Mall[.] 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

Sergeant Matthew Fallon SPR24/2212 Page 2 August 12, 2024 Petition to Assess Fees The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). 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). It is my determination that this request was not made for a commercial purpose. 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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).

Sergeant Matthew Fallon SPR24/2212 Page 3 August 12, 2024 Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Current Petition In addition to charging for segregating and redacting Items 9 and 10 of the request under Exemption (a), the Department states the following in its August 5th petition regarding its request to charge $25 per hour for time spent segregating and redacting Items 8, 9, and 10 under Exemption (c) of the Public Records Law: Item 8 The total length of all the body camera footage recorded for this call is approximately 112 minutes. This fee is the number of hours that I estimate it will take me to copy and redact the body camera footage. . . . I estimate that it will take 3 hours. [The requestor] will not be charged for the first two hours. . . . Ofc. Olin’s narrative for this case indicates that [a named individual] and her mother had an argument, and her mother’s boyfriend called the police. . . . The narrative states that [a named individual] had been yelling at her mom all day. [A named individual] stated that the argument was over money being taken. . . . I believe redactions may need to be made under Exemption [(c)] due to this family fight. Item 9 The total length of all the body camera footage recorded for this call is approximately 62 minutes and 16 seconds. This fee is the number of hours that I estimate it will take me to copy and redact the body camera footage. . . . I estimate that it will take 4 hours. [The requestor] will not be charged for the first two hours. . . . This incident occurred at the hospital. I believe the footage may show patients at the hospital, so I would need to redact these patients to ensure their confidentiality. I believe all this information may fall under Exemption [(c)], so these redactions may be necessary. Item 10 The total length of all the body camera footage recorded for this call is approximately 68 minutes and 45 seconds. This fee is the number of hours that I estimate it will take me to copy and redact the body camera footage. . . . I estimate that it will take 3 hours. [The requestor] will not be charged for the first two hours. . . . Ofc. Hardy’s report for this case indicates that [a named individual] was in possession of a stolen motor vehicle. . . . I believe that the footage may contain RMV information, including the victim’s license information (Exemption [(c)]). . . .

Sergeant Matthew Fallon SPR24/2212 Page 4 August 12, 2024 In light of the information provided in the Department’s petition, I find the Department has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without segregation or redaction. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the Department may assess a fee for the segregation and redaction of such exempt material. Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition, the Department is permitted to charge for time spent segregating and redacting the requested records. Please note that the requestor has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10(d)(iv)(4), l0A(c). Sincerely, Manza Arthur Supervisor of Records cc: Taylor Breaux