Michael Fleury v. Dracut, Town of - Police Department (SPR 20250717)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 17, 2025 SPR25/0717 Peter Bartlett Police Chief Dracut Police Department 110 Loonhill Road Dracut, MA 01826 Dear Chief Bartlett: On March 14, 2025, this office received your petition on behalf of Dracut Police Department (Department) seeking an extension of time to produce records and permission 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 Fleurry. G. L. c. 66, § 10(c); G. L.c. 66, § 10(d)(iv)(2). On March 4, 2025, Mr. Fleurry requested: [1] All “disciplinary files or documents” pertaining to me while employed by the Dracut Police Department. This should include any discipline file(s) or document(s) that the Dracut Police Department has in their possession regardless of its title, nature, or final disposition[;] [2] All documents, written or electronic, including emails that the Dracut Police Department submitted to the Massachusetts Post Commission pertaining to discipline I received during my tenure as an employee with the Dracut Police Department[.] 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 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; 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 Peter Bartlett SPR25/0717 Page 2 March 17, 2025 (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 additional 25 business days to respond.” In support of its request the Department provides the following information: Here, the Dracut Police Department estimates that it will take approximately 30 hours to review, segregate and redact the responsive records. The Dracut Police Department is a small municipal agency with forty-three sworn officers, including myself and the Deputy Chief. The records request encompasses voluminous files and transcripts that will need to be located, reviewed, segregated and redacted. It therefore requests an additional 25 business days to respond. . . . 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 25 business days. 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,

Chief Peter Bartlett SPR25/0717 Page 3 March 17, 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, “authority to charge fees for segregation and redaction of records pursuant to 950 CMR 32.06(4)(g) and (h).” In support of its petition, the Department provides the following information in support of its petition:

Chief Peter Bartlett SPR25/0717 Page 4 March 17, 2025 The identified reports will have to be reviewed and potentially redacted if they contain information identified as statutorily exempt from the Public Records Law. Specifically, G.L. c.4 section 7 (26) exemption (c) personnel or medical files or information; also any materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy. The records that are being requested contain personal identifier information, the disclosure of which would constitute an unwarranted invasion of personal privacy. 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). To the extent the responsive records contain the exempt information as described above, the Department may assess a fee for the segregation and redaction of such exempt material. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, I find the Department has established good cause for a time extension of 25 business days as described above. Additionally, to the extent the responsive records contain the exempt information as described above, the Department may assess a fee for segregation and redaction. Further, this office encourage the parties to communicate further to enable the Department to provide records in an efficient and affordable manner. Please note, Mr. Fleurry 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). Sincerely, Manza Arthur Supervisor of Records cc: Michael Fleurry