Adam Nuñez v. Salem, City of - Police Department (SPR 20250545)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 5, 2025 SPR25/0545 Ann Marie Greene Principal Clerk Records Division Salem Police Department 95 Margin Street Salem, MA 01970 Dear Ms. Greene: I have received the petition of Adam Nuñez appealing the response of the Salem 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 February 4, 2025, Mr. Nuñez requested the body camera footage of five identified Department officers, relating to “… the dispersal of the South River encampment on June 26, 2024.” The Department provided a response on February 18, 2025. Unsatisfied with the response, Mr. Nuñez petitioned this office and this appeal, SPR25/0545, was opened as a result. Subsequent to the opening of this appeal, the Department provided a further response on February 28, 2025. 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 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). 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

Ann Marie Greene SPR25/0545 Page 2 March 5, 2025 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 February 18th and February 28th Responses In its February 18, 2025 response, the Department assessed a fee of $200.00 for the estimated 10 hours of staff time necessary to provide Mr. Nuñez with responsive video recordings, charging for 8 hours of staff time at a rate of $25.00 per hour. In his February 25, 2025 petition to this office, Mr. Nuñez requested that the Department’s assessed fee be “… [waived] or reduced on the grounds of timeliness and lack of clarity surrounding how many business days are needed for the records in question will actually take to be released, in accordance with Massachusetts Public Records Law.” In its February 28, 2025 response, the Department clarified that it required 8 hours to review the requested records for exempt material, and an additional 2 hours to perform redactions under Exemptions (a) and (c) of the Public Records Law. The Department suggested that Mr. Nuñez modify his request to reduce the costs associated with production of responsive records, and stated that it would provide an anticipated date of production once it was clear how Mr. Nuñez wished to proceed with his request. 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 District’s response, it appears to be assessing a fee for redactions under Exemptions (a) and (c) of the Public Records Law. Under the Public Records Law, a fee may not

Ann Marie Greene SPR25/0545 Page 3 March 5, 2025 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 pursuant to a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). Consequently, the Department must clarify if the fee assessed includes time necessary to redact records under Exemption (c) of the Public Records Law. Further, the Department must clarify whether $25.00 per hour is the hourly rate of the lowest paid employee who has the skill required to search for, compile, segregate, redact, or reproduce the requested records. For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). This office encourages Mr. Nuñez 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. Nuñez 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. Nuñez 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: Adam Nuñez