Shawn Wiley v. Danvers, Town of - Police Department (SPR 20243429)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 7, 2025 SPR24/3429 James Lovell Chief of Police Danvers Police Department 120 Ash Street Danvers, MA 01923 Dear Chief Lovell: I have received the petition of Shawn Wiley appealing the response of the Danvers 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 26, 2024, Mr. Wiley requested the recorded interviews of two identified individuals relating to a specific incident. Prior Petition This request was the subject of a prior petition seeking permission to charge for time spent segregating or redacting responsive records. See SPR24/3316 Determination of the Supervisor of Records (December 13, 2024). In my December 13th determination, I found that the Department had met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. The Department provided a response on December 9, 2024. Unsatisfied with the response, Mr. Wiley petitioned this office and this appeal, SPR24/3429, 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 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

James Lovell SPR24/3429 Page 2 January 7, 2025 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). The Department’s December 9th Response In its December 9, 2024 response, the Department informed Mr. Wiley that it possessed two hours of video responsive to the request. The Department further stated: In this case, the lowest paid employee who has the necessary skill required to redact the records requested is an employee whose effective hourly rate exceeds $25 per hour. Nevertheless, a rate of $25 per hour will be used to calculate the following fee estimate … In this case, the Department will need to review the entirety of the two-hour video to determine the information exempt from disclosure within which must be redacted. Additionally, the Department anticipates that it will take a substantial amount of time to actually perform the redactions to the video, as many portions of the video will need to be redacted and each redaction will take at least several minutes to identify and process. The Department estimates three (3) redactions per minute, and two minutes to perform each redaction. Accordingly, the Department estimates that it will take twelve (12) hours to review and redact the video for information exempt from disclosure pursuant to Exemption (c) of the Public Records Law, including [several identified details]. Additionally, to actually perform the anticipated redactions, the Department will need to purchase a video-editing software, as it currently does not have the means to redact the video. The Department has identified “secureredact” as a video- editing software. Their cheapest plan is $969.00 to redact two hours of video … In accordance with 950 CMR 32.07(2)(m)(1), you will not be charged for the first two (2) hours of the Department’s redaction services. 10 hours multiplied by $25 per hour is $250.00. When combined with the cost of purchasing a video-editing software to perform the redactions, the Department’s total fee estimate is $1,219.00. The actual fee to produce these records may vary based on the actual time spent to complete the necessary redaction process.

James Lovell SPR24/3429 Page 3 January 7, 2025 Fee Waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: 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 Based on the Department’s response, it is unclear how it is permitted to charge for the purchase of video-editing software. See G. L. c. 66, § 10(d); see also 950 C.M.R. 32.07. The Department must clarify this matter. For the reason discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fee of $1,219.00, assessed in its December 9th estimate is consistent with G. L. c. 66, § 10(d). This office encourages Mr. Wiley 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. Conclusion Accordingly, the Department is ordered to provide Mr. Wiley 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

James Lovell SPR24/3429 Page 4 January 7, 2025 pre@sec.state.ma.us. Mr. Wiley 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: Shawn Wiley James Donnelly, Esq.