Kent DeMott v. Leominster, City of - Police Department (SPR 20242684)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 27, 2024 SPR24/2684 Sergeant Matthew Fallon Leominster Police Department 116 Central Street Leominster, MA 01453 Dear Sergeant Fallon: On September 24, 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). In three separate requests, on September 11, 2024, Mr. DeMott requested: [1] [I]dentify the police officer in this photo, taken from PBWC on August 12, 2023, at [an identified location]. [2] [A]ll body worn camera evidence from this to-be-identified officer’s body camera for this date. [3] [A]ny and all records related to the department’s service call to [an identified location], that occurred on or about February 26, 2022. [4] Please provide any and all records related to the department’s service call to [an identified location], that occurred on or about January 21, 2022. In an additional request on September 18, 2024, Mr. DeMott requested, [5] [A]ny and all documents, videos, pictures, 911 calls, non-emergency calls or any and all records documenting any and all interactions between Leominster Police or police civilians and [an identified individual], that occurred at any time on September 18, 2024[.] 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 SPR24/2684 Page 2 September 27, 2024 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 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).

Sergeant Matthew Fallon SPR24/2684 Page 3 September 27, 2024 Petition to Assess Fees In its petition, the Department requests permission to “assess fees for the four attached public records requests” and provides the following information in support of its request: [Items 1 and 2] The requested records may contain information regarding a plaintiff on an active harassment prevention order (258E), including the plaintiff’s home address, identity, and RMV information, so redactions may be needed under Exemption A (exempt by Statue). Ch. 258E sec. 10 exempts the plaintiff’s residential address contained within the court records of cases arising out of an action brought by the plaintiff. [Item 3] The requested records may contain information regarding a plaintiff on an active harassment prevention order (258E), including the plaintiff’s home address and medical information, so redactions may be needed under Exemption A (exempt by Statue) and Exemption C. Ch. 258E sec. 10 exempts the plaintiff’s residential address contained within the court records of cases arising out of an action brought by the plaintiff. [Item 4] The requested records may contain information regarding a plaintiff on an active harassment prevention order (258E), including the plaintiff’s home address and the plaintiff’s child’s medical information, so redactions may be needed under Exemption A (exempt by Statue) and Exemption C. Ch. 258E sec. 10 exempts the plaintiff’s residential address contained within the court records of cases arising out of an action brought by the plaintiff. [Item 5] The requested records may contain information regarding a plaintiff on an active harassment prevention order (258E), including the plaintiff’s home address, telephone number, and social security number, so redactions may be needed under Exemption A (exempt by Statue). Ch. 258E sec. 10 exempts the plaintiff’s residential address and residential telephone number contained within the court records of cases arising out of an action brought by the plaintiff. 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. 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.

Sergeant Matthew Fallon SPR24/2684 Page 4 September 27, 2024 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