Michael Hall v. Peabody, City of - Police Department (SPR 20250206)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 28, 2025 SPR24/0206 Captain Douglas Marcus Peabody Police Department 6 Allens Way Peabody, MA 01960 Dear Captain Marcus: On January 23, 2025, this office received your petition on behalf of the Peabody Police Department (Department) seeking permission to waive statutory limits to fees 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, Michael Hall of MAPFRE Insurance. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On January 14, 2025, Mr. Hall requested “body worn camera footage associated with report #24-833-AC.” 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). 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

Douglas Marcus SPR25/0206 Page 2 January 28, 2025 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). Commercial Purpose In its January 13th petition, the Department stated, “[i]n furtherance of this petition, we further state that the request is for a commercial purpose and/or the fee represents an actual and good faith representation to comply with the request...” Please be advised that the term “commercial purpose” as used in the Public Records Law shall mean: the sale or resale of any portion of the public record or the use of information from the public record to advance the requester’s strategic business interests in a manner that the requester can reasonably expect to make a profit, and shall not include gathering or reporting news or gathering information to promote citizen oversight or further the understanding of the operation or activities of government

Douglas Marcus SPR25/0206 Page 2 January 28, 2025 or for academic, scientific, journalistic or public research or education. G. L. c. 66, § 10(d)(ix). Based on the information provided by the Department, it is unclear how the request would meet the statutory definition of “commercial purpose” within the Public Records Law. See G. L. c. 66, § 10(d)(ix); see also SPR20/2599 Determination of the Supervisor of Records (January 5, 2021). Specifically, the Department has not shown that the public records will be sold, or resold, or used to advance the requestor’s strategic business interest. Petition to Assess Fees In its petition, the Department requests to charge fees for segregation and redaction of the responsive records, and argues the following in support of its request: The redactions include audio and visual components of these records that apply to Public Records Law Exemption’s (A) and (C). Exemption (A) specifically identifies any records divulging name, home, phone numbers, social security numbers and driver’s licenses. Exemption (C) Specifically applying to “personnel and medical files or information and any other materials or data relating to a specifically named individual. These records include names, dates of birth, faces, medical information, and motor vehicle plates that will all need to be redacted. Disclosure may reveal private information, unwanted intrusions, and may increase the risk of theft or identity fraud. In order to make these redactions… Based on the information provided in its fee 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 segregation or redaction. See G. L. c. 66, § 10(d)(iv). Fee in Excess of $25.00 per Hour In its petition, the Department requests to charge a fee of $54.17 per hour, and provides the following in support of its request: The requested records include four body worn camera videos with a total length of 74 minutes. The lowest paid employee who has the necessary skill to complete the segregation and redaction of these records is [an identified] Sergeant. This is due to the fact that the Body Worn Camera system has two administrators in the department including [two identified individuals] who are the sole employees responsible for the administrative work in the Body Worn Camera program. Furthermore, the administrative access that a Body Worn Camera administrator has limits the employees allowed to manage and view this sensitive information. These officers have specialized training and security clearances to manage, maintain, and secure the digital files associated with the department body cameras. For the department to allow an employee of lower rank/pay access

Douglas Marcus SPR25/0206 Page 2 January 28, 2025 would violate our department policy. [An identified] Sergeant’s normal hourly rate is $54.17. 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 $54.17 per hour for the tasks described above. Conclusion Accordingly, to the extent the responsive records contain the exempt information as described above, the Department may assess a fee for segregation and redaction. Additionally, the Department may assess a fee limited to $54.17 per hour. Please note, Mr. Hall 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, §§ 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Michael Hall