Anthony Werra v. Raynham, Town of - Police Department (SPR 20243336)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 17, 2024 SPR24/3336 Captain Peter Beatrice Records Access Officer Raynham Police Department 53 Orchard Street Raynham, MA 02767 Dear Captain Beatrice: On December 12, 2024, this office received your petition on behalf of the Raynham Police Department (Department) seeking permission to waive statutory limits on fees that may be assessed in responding to the request 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 Department furnished a copy of the petition to the requestor, Anthony Werra. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On December 4, 2024, Mr. Werra requested: [1] Police logs with incident numbers[;] [2] Officers name and badge numbers[;] [3] Any bodycam video associated with [the] encounter[.] Please note that in a telephone call to this office on December 13, 2024, Mr. Werra objected to the Department’s petition. 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). 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

Captain Peter Beatrice SPR24/3336 Page 2 December 17, 2024 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. 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 requests “the Supervisor to permit us to charge a fee of $274.76 for the segregation and redaction charges associated with this request and response” and provides the following information in support of its petition: [W]e will be required to make certain redactions to those records in accordance with the Public Records Law.

Captain Peter Beatrice SPR24/3336 Page 3 December 17, 2024 Exemption (a): This exemption applies to records that are “specifically or by necessary implication exempt from disclosure by statute.” Criminal Offender Record Information (CORI): In particular, G.L. c. 6, sections 167-1 788, and related regulations, requires that criminal justice agencies withhold any records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to that recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. Criminal offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 is adjudicated as an adult, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. Please be advised, records custodians may assess fees for time spent segregating or redacting records where such segregation or redaction is required by law. See 950 C.M.R. 32.07(2)(d) (stating that fee for segregation or redaction is permissible when approved by Supervisor or when required by law. Where the Department only seeks to assess fees as required by law under Exemption (a) of the Public Records Law, I find it unnecessary to opine on whether the Department may assess fees for segregating and redacting the records. Fee in Excess of $25.00 per Hour In its petition, the Department requests to charge a fee of $68.69 per hour, and provides the following in support of its request: The requested records include the following: body camera footage. The lowest paid employee who has the necessary skill to complete the segregation and redaction of these records is [an identified] Lieutenant. This is due to the fact that he is the only person within the department who has the knowledge, skill and ability to perform the segregation and redaction. The Lieutenants normal hourly rate is $68.69.

Captain Peter Beatrice SPR24/3336 Page 4 December 17, 2024 Subsequently, in an email to this office on December 16, 2024, the Department states “[d]ue to our department’s current policy and the fact that as of today’s date, [an identified individual] is the only one trained to redact any camera footage is our reason why [an identified individual] is the one who has to do the redactions.” Based on 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 assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). I find the Department may assess a fee limited to $68.69 per hour for the tasks described above. Conclusion Accordingly, I find it is unnecessary to opine on the Department’s petition for permission to charge for time spent segregating or redacting responsive records. Additionally, as described above, the Department may assess a fee limited to $68.69 per hour. This office encourages Mr. Werra and the Department to continue to communicate directly 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 to 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 records sought more efficiently and affordably). Any subsequent fee estimate from the Department must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Mr. Werra 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: Anthony Werra Heather Correia