Kent DeMott v. Leominster, City of - Police Department (SPR 20242589)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 19, 2024 SPR24/2589 Sergeant Matthew Fallon Leominster Police Department 116 Central Street Leominster, MA 01453 Dear Sergeant Fallon: On September 16, 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(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, Kent DeMott. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On September 4, 2024, in twenty-one (21) separate requests, Mr. DeMott requested any and all records related to 21 specified allegations filed against the Department. In a request also dated on September 4, 2024, Mr. DeMott requested, “the complete personnel files, including all training records and all records of any and all disciplinary actions, for the following [31 identified individuals].” In a final request also dated on September 4, 2024, Mr. DeMott requested “any and all documents or recordings, related to [an identified individual’s] December 17, 2021, visit to . . . Valleyview Road, including the following: [five specified categories of records].” Petition to assess fees – Municipalities 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 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 SPR24/2589 Page 2 September 19, 2024 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 or to charge in excess of $25 an hour for the provision of public 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). Petition to Assess Fees In its petition, the Department seeks to assess fees for segregation and redaction, and explains that “over a thousand records you are requesting . . . may need to be reviewed and redacted[.]” The Department provides the following information in support of its petition: Please be advised the personnel files that you requested may contain police officers’ medical records, police officers’ family names and addresses, and police officers’ personal phone numbers, home addresses and social security numbers.

Sergeant Matthew Fallon SPR24/2589 Page 3 September 19, 2024 We do not have any records with these allegation numbers on them so we will need to locate the matters they pertain to. The allegations may stem from police officers’ responses to particular calls. We respond to many different types of calls, some which may involve investigations into domestic violence, family disputes, medical calls etc., so redactions may be necessary. We received the attached records request from [Mr. DeMott] on 09/04/2024 (attachment labeled 8). The records you requested may contain information regarding a plaintiff on an active harassment prevention order, so redactions may be necessary. Subsequently, in an email to this office on September 18, 2024, the Department states that in addition to charging for segregation and redaction required by law under Exemption (a) of the Public Records Law, the Department requests to charge for segregation and redaction pursuant to Exemptions (c), (o) and (p). The Department provides the following in support of its request: Police officers’ medical records and medical information contained in our personnel files fall under Exemption C (Privacy Exemption) so redactions for this reason are needed. Police officers’ social security numbers contained in our personnel files fall under Exemption C (Privacy Exemption) so reactions for this reason are necessary. Police officers’ home addresses contained in our personnel files fall under Exemption O, so redactions for this reason are necessary. The names, homes addresses, and phone numbers of police officers’ family members contained in our personnel files fall under Exemption P, so redactions for this reason are necessary. Also, the requested personnel files and disciplinary records are subject to withholding under Exemption C. The requested records that these POST allegation numbers pertain to contain personnel documentation and disciplinary records which are subject to withholding under Exemption C, so redactions may be needed for this reason. In light of 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 redaction or segregation. 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. 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, § (26)(c).

Sergeant Matthew Fallon SPR24/2589 Page 4 September 19, 2024 Conclusion Accordingly, I find the Department has met its burden to explain how the response could not be prudently completed without segregation or redaction. I encourage the parties to communicate further to enable the Department to provide records in an efficient and affordable manner. Please note, Mr. DeMott 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(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Kent DeMott