Barbara Grenier v. Burlington, Town of - Police Department (SPR 20243008)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 12, 2024 SPR24/3008 Kate Curtis-Bozio Problem-Solving Analyst Administrative Assistant Burlington Police Department 45 Center Street Burlington, MA 01803 Dear Ms. Curtis-Bozio: On November 6, 2024, this office received your petition on behalf of the Burlington Police Department (Department) requesting a waiver of statutory limits on fees that may be assessed in responding to the request. 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, Barbara Grenier. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On October 31, 2024, Ms. Grenier requested “[a] copy of [your] records, including, but not limited to the call log, report, photos, witness statements, video, and 911 audio turret tape, of this incident which took place on or about 10/23/2024 at/near [a specified address], involving [identified individuals].” 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 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

Kate Curtis-Bozio SPR24/3008 Page 2 November 12, 2024 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). Fee in Excess of $25.00 per Hour In its petition, the Department requests “…permission to charge the following fees associated with the segregation and redaction of the body-camera footage beyond the two hours allotted by law.” The Department provides the following argument: [T]he fee we wish to charge is: $137.14  4 hours redaction (2 x 0) + (2 x 68.57) = $137.14 ... [T]he requested records include the following: 38 minutes of body camera footage

Kate Curtis-Bozio SPR24/3008 Page 3 November 12, 2024 and a log entry. The lowest-paid employee who has the necessary skill to complete the segregation and redaction of the body-camera records is Captain Kevin Cooney. The body camera equipment was recently implemented in the department, introducing advanced technology that captures critical footage. As a result, Captain Cooney has emerged as the sole individual with a comprehensive understanding of the software, enabling him to navigate its features effectively. He is currently the only one with the necessary clearance to access and review the recorded videos. The Captain’s normal hourly rate is $68.57. ... [We] further state that the fee represents an actual and good faith representation to comply with the request, the fee is necessary, the amount of the fee is reasonable and the fee is not designed to limit, deter or prevent access to requested public records. This is based upon the following: The body-camera footage has been located and the associated log entry has already been prepared by the clerk who handles such requests; as the Captain has many duties outside of public records, the time dedicated to applying the redactions to the body camera video would have to be outside of his normal hours and or in place of his other responsibilities. 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 assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). In light of the factors in G. L. c. 66, § 10(d)(iv), I find the Department may assess a fee limited to $68.57 per hour. Conclusion Accordingly, as described above, the Department may assess a fee limited to $68.57 per hour. Please note, Ms. Grenier 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: Barbara Grenier