Peter Bin v. Billerica, Town of - Police Department (SPR 20242970)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 6, 2024 SPR24/2970 Sergeant Andrew Devito Billerica Police Department 6 Good Street Billerica, MA 01821 Dear Sergeant Devito: On October 31, 2024, this office received your petition on behalf of the Billerica 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, Peter Bin. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On October 8, 2024, Mr. Bin requested, “a complete copy of the case file pertaining to an incident that occurred on July 7, 2012 at Boston Rd. Billerica resulting in the death of [an identified individual]. This PRR including but are not limited to e.g., incident reports, police reports, police notes, witness statements, narrative notes, memos, ballistic reports, forensic reports, DNA reports, crime scene reports, sketches, diagrams, photographs, expert reports, CD’s, tapes, videos, etc.” 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. The first prong is whether the request for records was made for a commercial 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 Andrew Devito SPR24/2970 Page 2 November 6, 2024 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 Petition In its petition, the Department requests, “approval to assess fees for costs associated with responding to a public records request…” In support of its request, the Department provides the following information concerning anticipated redactions: Any disclosure of records related to the death of [an identified individual] at this stage would involve “investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See G.L. c. 4, § 7, cl. 26 (exemption f). As such, in order to produce any responsive records, the Department would need to review such records in order to segregate and redact all information exempt

Sergeant Andrew Devito SPR24/2970 Page 3 November 6, 2024 from disclosure pursuant to exemptions (a), (c), and (f). Because the records requested include case files for [identified individuals], and each file contains hundreds of pages, the total volume of material that the Department must review to respond to your request comprises thousands of pages. … In our response letter to Mr. Bin we explained that his request, in its current form, will require the review of thousands of pages and queried whether Mr. Bin would like to narrow his request. However, if Mr. Bin would like to proceed with his current request at this time we are seeking reasonable fees associated with reviewing and processing his request, specifically to segregate and redact information pursuant to exemptions (a), (c) and (f). 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, to the extent the responsive records contain the exempt information described above, the Department may assess a fee for segregation and redaction. See G. L. c. 66, § 10(d)(iv). Further, this office encourages the requestor and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii). Please note, Mr. Bin 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: Peter Bin