Tracy McNaughton v. Shutesbury, Town of - Police Department (SPR 20250339)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 14, 2025 SPR25/0339 Kristin Burgess Chief of Police Shutesbury Police Department 1 Cooleyville Road Shutesbury, MA 01072 Dear Chief Burgess: I have received the petition of Tracy McNaughton appealing the response of the Shutesbury 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 January 27, 2025, Ms. McNaughton requested the following: [1.] [a named individual]’s original resume, cover letter and application submitted for a position on the Shutesbury force. [4.] All contracts with Shutesbury since original date of hire [5.] Resume, cover letter and application for Shutesbury Police Chief position [6.] Waivers applied for and granted in order for [a named individual] to qualify for the position of Police Chief [7.] MA Police Academy Certificate of Completion [8.] Ma Bridge Academy Certificate of Completion The Department provided a response on January 27, 2025, which included a fee estimate. Unsatisfied with the response, Ms. McNaughton petitioned this office and this appeal, SPR25/0339, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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

Chief Kristin Burgess SPR25/0339 Page 2 February 14, 2025 It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Fees - 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 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 how 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 27th response In its January 27, 2025 response, the Department provided a fee estimate of $75.00 and stated, “[d]iscovery of this request will take approximately 3 hours total. The state minimum of 25.00 per hour brings this estimate to 75.00 due before process of request.” Current Appeal In her appeal petition, Ms. McNaughton states, “[i]t seems odd that the police chief would be the RAO for her own personnel records. There was no dispute about whether the records were exempt, only a fee attached that seems highly unreasonable, thus my concern that the Chief can’t be objective when it comes to her own records.”

Chief Kristin Burgess SPR25/0339 Page 3 February 14, 2025 Although the Department has estimated that the process of preparing the requested records requires 3 hours to produce responsive records, it is not clear from the Department’s estimate how much time is allocated to search, and how much time is allocated for segregation and/or redaction of the records, if any. Further, the Department must provide additional information regarding the tasks involved in producing these records. Accordingly, the Department must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Additionally, the Department must clarify if the 3 hours includes the first free 2 hours to search for, compile, segregate, redact or reproduce records. 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). Further, the Department’s fee estimate lacks confirmation that the rate per hour is of the lowest paid employee who is capable of performing the task(s). The Department must clarify. For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fee of $75.00 assessed in its January 27th estimate is consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Department is ordered to provide Ms. McNaughton with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 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. Sincerely, Manza Arthur Supervisor of Records cc: Tracy McNaughton