Emma Rindlisbacher v. Ware, Town of - Police Department (SPR 20242364)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 5, 2024 SPR24/2364 Chief Shawn C. Crevier Ware Police Department 22 North Street Ware, MA 01082 Dear Chief Crevier: I have received the petition of Emma Rindlisbacher appealing the response of the Ware 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 August 9, 2024, Ms. Rindlisbacher requested “[a]ll Ware Police internal affairs reports related to [a named individual, who] used to work as a police officer in Ware.” In her request, she also states “[p]lease limit this request to documents between Jan 1, 2018 and Aug 1, 2024. Please deliver all documents electronically via email.” The Department responded on August 21, 2024, providing a fee estimate. Objecting to the fees, Ms. Rindlisbacher petitioned this office, and this appeal, SPR24/2364, 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). 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. 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 Shawn C. Crevier SPR24/2364 Page 2 September 5, 2024 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). Current Appeal In her appeal petition, Ms. Rindlisbacher contends “that records related to police misconduct cannot be withheld due to privacy reasons. So the records custodian should not be spending time and charging me an hourly fee for redacting records on a basis that is not justified.” Additionally, she contends that “this response indicates that I will be charged for a flash drive. I do not think such a charge is justified as these documents can be emailed to me.” In a subsequent email to this office, Ms. Rindlisbacher further contends that “the first two hours for municipal requests are supposed to be free, so I should not be charged any fees for this request.” The Department’s August 21st Response In its August 21, 2024 response, the Department provides a total fee estimate of $60.00, and provides the following information in support of its fee estimate: The fee has been established ... as not more than $25.00 per hr. or, the hourly rate of the lowest paid employee who has the necessary skill to complete the search and segregation, whichever is less, and whose hourly rate is greater than $25.00 per hr. Therefore, the search and segregation costs have been calculated using the hourly rate of $25.00 per hour, as set by the state.

Chief Shawn C. Crevier SPR24/2364 Page 3 September 5, 2024 . . . To comply with your request, it is estimated that it will take at least two hours to search for, compile, segregate, review, redact, and reproduce the documents you request. Based on this estimate, a total reasonable fee of $ 60.00 will be charged, this includes a $10 fee for the flash drive. . . . Be advised that some of the requested documents are likely subject to exemption “A.” This exemption applies to records that are specifically or by necessary implication exempt from disclosure by statute, specifically, M.G.L. c. 41, section 97D which requires law enforcement agencies to keep all reports of incidents defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses confidential. In a subsequent email to this office and Ms. Rindlisbacher on August 21, 2024, the Department confirmed that “[t]he town of Ware has a population of under 20,000 people.” Based on its August 21st fee estimate, the Department has explained that the hourly rate is less than that of the lowest paid employee with the necessary skills, and has confirmed that the segregation and redaction described in the fee estimate is required by law, and that the municipality has a population of 20,000 people or less. However, based on the Department’s fee estimate, it is unclear why the Department requires two hours to produce the responsive records. The Department must provide further details regarding the tasks involved and what each task entails, including the time it is allocating to compiling, segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Additionally, where Ms. Rindlisbacher requested the records be sent by email, it is unclear why the Department is charging for a flash drive. The Department must clarify these matters. For the reasons discussed above, I find the Department must either 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 Ms. Rindlisbacher with a response to the request, provided in a manner consistent with this order, the Public Records Law and its 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.

Chief Shawn C. Crevier SPR24/2364 Page 4 September 5, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Emma Rindlisbacher