Gregg Silva v. Somerset, Town of - Police Department (SPR 20242700)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 1, 2024 SPR24/2700 Melissa Reis Records Access Officer Somerset Police Department 465 County Street Somerset, MA 02726 Dear Ms. Reis: On September 26, 2024, this office received your petition on behalf of the Somerset Police Department (Department) seeking permission to waive statutory limits to fees and 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 Town furnished a copy of the petition to the requestor, Gregg Silva. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On September 25, 2024, Mr. Silva requested “. . . police reports that pertain to an ongoing neighbor dispute for a harassment protection order[.]” Petition to assess fees – Municipalities The 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). It is my understanding that this request was not made for a commercial purpose. 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

Melissa Reis SPR24/2700 Page 2 October 1, 2024 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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 “the ability to charge the fees petitioned for herein to search for, compile and redact if applicable by following the guidelines of Public Record Law M.G.L. c. 66, § 10[.]” Subsequently, in an email to Mr. Silva and this office on September 30, 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) and (f). The Department states the following in support of its request Exemption C: social security numbers, addresses, dates of birth, phone numbers or any other information of the like: Exemption (c) . . . The records requested

Melissa Reis SPR24/2700 Page 3 October 1, 2024 contain information which, if disclosed, would constitute an unwarranted invasion of personal privacy and the privacy interests involved outweigh the public interests in the disclosure of that information. Exemption F: witness names, dates of births, social security numbers, address, phone numbers and their statements. . . . The above requested records contain witness information; therefore, redactions are appropriate to preserve the anonymity of voluntary witnesses. This exemption is also intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about such matters. Any and all information contained in a witness statement and/or within the investigation involving said voluntary witnesses, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness who is subject to withholding. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Disclosure would so prejudice the possibility of effective law enforcement that such disclosure would not be in the public’s interest. Based on the information provided in its fee 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). Fee in Excess of $25.00 per Hour In its petition, the Department seeks a waiver of statutory limits on fees and provides the following in support of its request: Due to the magnitude of this request, the Somerset Police Department is respectfully requesting the ability to charge for this request. These records date back to 2013 and there are between 20-25 records. This request requires an extensive amount of time to search, collect, segregate and examine the requested records. Please be advised, that this department employs one records clerk who is able to fulfill this type of request. This employee is the only one that can search and compile these types of requested records. The hourly rate for the records clerk is $33.18. Based on the Department’s petition, I find the Department has not met its burden to explain how the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv).

Melissa Reis SPR24/2700 Page 4 October 1, 2024 Conclusion Accordingly, to the extent the responsive records contain the exempt information as described above, the Department may assess a fee for segregation and redaction. However, I find the Department has not met its burden to assess fees in excess of $25 per hour. Further, I encourage the parties to communicate to enable the Department to provide records in an efficient and affordable manner. Please note, Mr. Silva 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, §§ 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Gregg Silva