Ted Manka v. Burlington, Town of - Police Department (SPR 20243416)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 27, 2024 SPR24/3416 Kevin Cooney Support Services Captain Burlington Police Department 45 Center Street Burlington, MA 01803 Dear Captain Cooney: On December 23, 2024, this office received your petition on behalf of the Burlington Police Department (Department) seeking a waiver of statutory limits on fees that may be assessed in responding to the request. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Department furnished a copy of the petition to the requestor, Ted Manka. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On September 26, 2024, Mr. Manka requested the following: [1.] Bodycam and dashcam footage for all responding officers to the lockdown at the Burlington MA highschool on 9/24/2024 [2.] Police report(s) filed for the 9/24/2024 incident [3.] Post incident review on the WAVE emergency response (lockdown) system [4.] Any other recorded (video or audio) files related to the lockdown on 9/24/2024 at the Burlington MA highschool[.] Previous Appeal This request was the subject of a previous appeal. See SPR24/2876 Determination of the Supervisor of Records (November 4, 2024). In my November 4th determination, I found that the Department had not met its burden to withhold and redact the responsive records under Exemptions (c) and (n) of the Public Records Law. Subsequently, the Department petitioned this office seeking a waiver of statutory limits on fees to provide records responsive to the first category of Mr. Manka’s request. 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

Kevin Cooney SPR24/3416 Page 2 December 27, 2024 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. 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).

Kevin Cooney SPR24/3416 Page 3 December 27, 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). Conclusion The Department submitted its petition on December 23, 2024, more than ten business days after receipt of the request. In light of the fact, the Department has not demonstrated it submitted a timely petition, a waiver of statutory limits on fees cannot be granted. 950 C.M.R. 32.06(4)(g). Sincerely, Manza Arthur Supervisor of Records cc: Ted Manka