Lisa Joseph v. Ashby, Town of - Police Department (SPR 20250454)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 21, 2025 SPR25/0454 Angela Garhart Records Access Officer Ashby Police Department 893 Main Street Ashby, MA 01431 Dear Ms. Garhart: On February 14, 2025, this office received your petition on behalf of the Ashby Police Department (Department) seeking a waiver of statutory limits to fees that may be assessed in responding to the request. 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 requestors, Lisa Joseph and Michael Pilcher (requestors). G. L. c. 66, § 10(c); G. L.c. 66, § 10(d)(iv)(2). On February 7, 2025, the requestors sought the following: [1] Any and all recorded calls from and to Ashby Police to [specified telephone numbers], from 1/8/24-2/3/25 [2] [A]ny and all recorded calls relevant or related to incident from 1/7/25 at . . . Pillsbury Road, Ashby, Ma [3] [A]any and all body camera video footage files 1/8/25-2/3/25 from officers who responded and were on the property of . . . Pillsbury are, Ashby, Ma involving an incident that took place on 1/7/25 [4] [A]ny any [sic] all body camera footage files related to incident on 1/7/24 located at . . . Pillsbury and at Ashby police department , Ashby, Ma from 1/7/25- 2/3/24 and [5] [A]ny and all video footage files from Ashby Police lobby with voice recordings of [identified individuals] from 1/8/25-2/3/25. Petition to Assess Fees – Municipalities The Supervisor of Records (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, 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

Angela Garhart SPR25/0454 Page 2 February 21, 2025 § 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. 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 determination 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). Current Petition In its petition, the Department requests permission “to charge for 8 hours at $39.40, for a total of $315.20.” The Department provides the following in support of its request to charge fees in excess of $25.00 per hour:

Angela Garhart SPR25/0454 Page 3 February 21, 2025 The requested audio and video files are accessible and able to be redacted only by Chief Derek Pepple or Sergeant Brian Vautour, per policy, which makes Sgt. Vautour the lowest paid employee with the access and ability to complete this portion of the request. We are a department of 7 police officers, and our town has approximately 3300 residents. We are requesting permission to charge his hourly rate to complete the segregation and redaction of the recorded phone calls and body-worn camera footage. His normal hourly rate is $39.40. With respect to the recorded phone calls requested, our system catalogs the calls by date and time and does not include any Caller ID information. We have a total of 747 calls, with times ranging from 3 seconds to over 16 minutes, between the requested dates of 01/08/2025 through 02/03/2025. If we assign each call an average of 1 minute, that results in over 12 hours of calls requiring segregation. Sgt. Vautour will need to listen to a short portion of each call to determine if it is one that has been requested and then complete any redaction. We request permission to charge for 4 hours for this task. With respect to the body-worn camera video, we are in possession of between 3 and 4 hours of footage. The responding officer’s written reports indicate that the video contains several instances that include statements regarding the additional incidents that must be withheld. Sgt. Vautour will be required to segregate and redact all body-worn camera footage. We request permission to charge for 4 hours for this task. 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 $39.90 per hour. Conclusion I find the Department has met its burden to explain how the response could not be prudently completed without assessing a fee in excess of $25.00. Accordingly, the Department may assess a fee limited to $39.90 per hour. Please note, the requestors have the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10(c), 10(d)(iv)(4), 10A(c).

Angela Garhart SPR25/0454 Page 4 February 21, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Lisa Joseph Michael Pilcher