Justin Amos v. Peabody, City of - Police Department (SPR 20250610)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 7, 2025 SPR25/0610 Captain Douglas S. Marcus Administrative Commander Peabody Police Department 6 Allens Lane Peabody, MA 01960 Dear Captain Marcus: On March 4, 2025, this office received your petition on behalf of the Peabody Police Department (Department) seeking an extension of time to produce records, permission to charge for time spent segregating or redacting responsive records, and a waiver of statutory limits on fees that may be assessed in responding to a public records 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 requestor, Justin Amos, of Pierce Davis & Perritano LLP. G. L. c. 66, § 10(c); G. L.c. 66, § 10(d)(iv)(2). On February 25, 2025 Mr. Amos requested the following: [1] Any and all photographs and videos of related to a motor vehicle accident that occurred on or about August 10, 2024, at or near [a specified address]; [2] Any and all witness statements, reports (including, but not limited to, police reports, EMS reports, Fire Department reports, and M.G.L c. 90, § 26 Motor Vehicle Crash Operator Reports) related to a motor vehicle crash that occurred on or about August 10, 2024, at or near [a specified address]; [3] Communication with Salter Transportation, Inc. related to a motor vehicle crash that occurred on or about August 10, 2024, at or near [a specified address]; [4] Communication with [an identified individual] related to a motor vehicle crash that occurred on or about August 10, 2024, at or near [a specified address]; [5] Any other documents pertaining to a motor vehicle crash that occurred on or about August 10, 2024, at or near [a specified address][.] Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a 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

Captain Douglas S. Marcus SPR25/0610 Page 2 March 7, 2025 single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) must provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Request for Additional Time to Produce Records In its petition, the Department requests, “an extension of the time allotted for an additional fifteen (15) business days…” In support of its request the Department provides the following information: In order to comply with your request, it will take approximately 57.25 hours of segregation and redaction time, based upon the following: In order to redact the videos, they need to be redacted frame by frame which includes 30 frames per recorded second and 1800 frames per reordered minute. These videos include a total of 229 recorded minutes. The average time needed to redact each minute of video takes approximately 15 minutes, therefore these redactions will take a total of 57.25 hours. In light of the need to collect and examine the records, and the capacity of the Department to produce the records without an extension, the Department has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iii). The Department is granted an extension of 15 business days.

Captain Douglas S. Marcus SPR25/0610 Page 3 March 7, 2025 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, § 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).

Captain Douglas S. Marcus SPR25/0610 Page 4 March 7, 2025 Current Petition In its petition, the Department seeks permission to charge for time spent segregating or redacting responsive records. In support of its request, the Department provides the following information concerning anticipated redactions: In reference to the request for communications related to a motor vehicle accident that occurred on or about August 10, 2024, at [a specified address] the department will need to compile, segregate, and redact and/or reproduce phone calls and radio transmissions (turret). Redactions pertaining 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, we are required to devote 2 hours of time to search for, compile, segregate, redact and/or reproduce these requested records. … With respect to the request, we have the following records: Multiple body worn camera videos totaling 229 minutes in total length. However, we will be required to make certain redactions to those records in accordance with the Public Records Law. 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 light of 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 redaction or segregation. See G. L. c. 66, § 10(d)(iv). Fee in Excess of $25.00 per Hour In its petition, the Department is seeking to charge a rate of $54.17 per hour. The Department provides the following in support of its request to charge fees in excess of $25.00 per hour: In reference to radio/phone communications (turret) The lowest paid employee who has the necessary skill to complete the segregation and redaction of these

Captain Douglas S. Marcus SPR25/0610 Page 5 March 7, 2025 records is Sergeant Robert Faletra. This is due to the fact that the 911 recorder has three administrators in the department which include Captain Douglas Marcus, Lieutenant Javier Sanchez, and Sergeant Robert Faletra who are the sole employees responsible for the administrative work and are the only trained officers in obtaining phone and radio communication. Sergeant Faletra’s normal hourly rate is $54.17. … The requested records include body worn camera videos with a total length of 229 minutes. The lowest paid employee who has the necessary skill to complete the segregation and redaction of these records is Sergeant Robert Faletra. This is due to the fact that the Body Worn Camera system has two administrators in the department including Sergeant Robert Faletra and Captain Douglas Marcus 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 would violate our department policy. Sergeant Faletra’s normal hourly rate is $54.17[.] In light of 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). The Department may assess an hourly rate limited to $54.17 for segregation and redaction of the body worn camera videos and radio/phone communications described above. However, the Department may not assess a fee in excess of $25.00 per hour for other tasks. G. L. c. 66, § 10(d)(iii). Conclusion Accordingly, I find the Department has established good cause for a time extension of 15 business days. Additionally, to the extent the responsive records contain the exempt information described above, the Department may assess a fee for segregation and redaction. Further, while the Department may assess a fee limited to the hourly rate of $54.17 for segregation and redaction of the body worn camera videos and radio/phone communications, the Department may not assess a fee in excess of $25.00 for other tasks. Please note, Mr. Amos 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, §§ 10(c), 10(d)(iv)(4), 10A(c).

Captain Douglas S. Marcus SPR25/0610 Page 6 March 7, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Justin Amos