Shawn Wiley v. Danvers, Town of - Police Department (SPR 20250183)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 27, 2025 SPR25/0183 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 Appeal and Petition This request was the subject of a prior appeal and a prior fee petition. See SPR24/3316 Determination of the Supervisor of Records (December 13, 2024) and SPR24/3429 Determination of the Supervisor of Records (January 7, 2025). 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. In my January 7th Determination, I found that it was unclear how the Department was permitted to assess a fee for the purchase of video-editing software. The Department provided a response on January 20, 2025. Unsatisfied with the response, Mr. Wiley petitioned this office and this appeal, SPR25/0183, 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). 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 SPR25/0183 Page 2 January 27, 2025 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). 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 January 20th Response In its January 20, 2024 response, the Department provided further justification for its fee of $1,219.00, assessed in its December 9, 2024 fee estimate. Specifically, the Department stated: G.L. c. 66, sec. 10(d) allows a public entity to “assess a reasonable fee for the production of a public record … [which] shall not exceed the actual cost of reproducing the record.” The Department’s fee estimate of $1,219.00 is the Department’s estimate of the actual cost of producing the requested video – 12 hours of review and redaction time ($250.00) combined with $969.00 for video‐ editing software that will allow the Department to redact the video, as the Department does not currently have any means of redacting the requested video. Please also note that the $969.00 cost for video‐editing software would only be used to redact the requested video and represents SecureRedact’s cheapest pricing plan available that allows the Department to redact two hours of video. This is not a case of a public entity charging for its organization and management of records, but rather a public entity reasonably passing along the actual cost of producing a public record to the requester. Denying the Department the ability to charge a fee for its actual costs to redact the requested video contravenes the plain language of the Public Records Law and would force the Department to spend $969 of scarce public resources. Based on the Department’s response, I find that it has not met its burden to assess a fee of $1,219.00. Specifically, the Department has not demonstrated that the “actual cost” of reproducing the requested records includes the purchase of specific video editing software, at a cost of $969.00. See G. L. c. 66, § 10(d); see also 950 C.M.R. 32.07. 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).

James Lovell SPR25/0183 Page 3 January 27, 2025 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 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.