Renee LaPlume v. Ayer, Town of - Police Department (SPR 20243171)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 10, 2024 SPR24/3171 Robert Mackie Department Assistant Ayer Police Department 54 Park Street Ayer, MA 01432 Dear Mr. Mackie: I have received the petition of Renee Laplume appealing the response of the Ayer Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 7, 2024, Ms. Laplume requested copies of all records associated with a specific address and nine named individuals, for the period January 2013 to the present. The Department provided a response on November 22, 2024. Unsatisfied with the response, Ms. Laplume petitioned this office and this appeal, SPR24/3171, was opened as a result. 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 (two) 2 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). 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

Robert Mackie SPR24/3171 Page 2 December 10, 2024 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). The Department’s November 22nd Response In its November 22, 2024 response, the Department informed Ms. Laplume that it had identified 123 incidents responsive to her request, for which audio recordings of responsive “… 911, business telephone line and radio traffic …” would need to be segregated from nonresponsive audio recordings. The Department estimated that the cost of searching for, segregating, and redacting said recordings would be $1,224.46, and stated: [1] 10 Minutes to review and segregate a requested incident.  Identify the Year, Month, Date, and Time of the requested Incident  locate and identify corresponding 9-1-1 line recordings within the time frame.  locate and identify corresponding Business line recordings within the time frame.  Locate and identify corresponding radio transmissions recordings within the time frame.  Save all recordings that relate to the incident being researched[;] [2] 5 minutes to review any/all audio for necessary redactions. For instance, calls from other parties or with other parties in them will have to have their phone numbers redacted if given or if they disclose any information redactable according to statute (a)[;] [3] 5 minutes to apply and save any/all redactions. In its response, the Department stated, “... you will be charged for employee search time to locate and identify responsive records, at the hourly rate of the lowest paid person capable of compiling, segregating, redacting where required by law, and reproducing responsive records, in accordance with 950 CMR 32.07(2)(i). This rate shall not exceed $25.00 per hour, unless otherwise authorized by the Supervisor of Records. Please note that because the Department has less than 20,000 residents, pursuant to the last Decennial U.S. Census (8,749), you will be charged for all hours of work associated with this request.” In her November 25, 2024 petition to this office, Ms. Laplume requested that the assessed fee be waived, given that disclosure is in the public interest. Fee Waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records:

Robert Mackie SPR24/3171 Page 3 December 10, 2024 the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). Reasonableness of the Fee Estimate Under the Public Records Law a fee may 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 pursuant to a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). Although the Department indicates that redactions will be performed pursuant to Exemption (a) of the Public Records Law, the Department must clarify under which statute it intends to redact the responsive records. Upon review, it is unclear why for each responsive incident the Department requires 5 minutes to review the recordings for exempt material and 5 minutes to redact the exempt material. The Department must provide further details regarding the length of time required to produce these records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Further, based on the Department’s estimate of 20 minutes per incident at a rate of $25.00 per hour, it is unclear how the Department arrived at its estimate of $1,224.46. The Department must provide additional information regarding how it calculated its assessed fee of $1,224.46. For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). This office encourages Ms. Laplume and the Department to communicate further in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce the records sought more efficiently and affordably). Any revision to the request would result in the requirement to issue a revised fee estimate.

Robert Mackie SPR24/3171 Page 4 December 10, 2024 Conclusion Accordingly, the Department is ordered to provide Ms. Laplume with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Ms. Laplume may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Renee Laplume