Fourth Estate Journalism v. Somerville, City of - Law Department (SPR 20250921)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 16, 2025 SPR25/0921 David Shapiro, Esq. Deputy City Solicitor City of Somerville 93 Highland Avenue Somerville, MA 02143 Dear Attorney Shapiro: I have received the petition of Fourth Estate Journalism (requestor) appealing the response of the City of Somerville (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 19, 2025, the requestor submitted the following request: All public records, spanning from February 26, 2021 to February 26, 2023, concerning all reports or complaints-whether oral, written, informal, formal, partial, or fully documented-that involve allegations, concerns, or grievances raised against former and present employees, personnel, or affiliates of the Somerville Police Department. This includes cases in which the reporter or complainant may have chosen not to proceed, opted against further engagement, or otherwise ceased participation at any stage of the process. The City responded on March 28, 2025, providing a fee estimate $1,100.00 and advising, “[i]f you wish to narrow your request, please respond with your proposed modifications and we will determine if there are any responsive records and provide a revised fee estimate.” Subsequently, in an email to the City dated March 31, 2025, the requestor asked the City to “permit public access to the records by granting the fee waiver” and additionally narrowed the timeframe specified in the request to “February 26, 2022 to February 26, 2023.” The City responded on April 1, 2025, providing a revised fee estimate for the narrowed request. Objecting to the fees, the requestor appealed, and this case was opened as a result. Subsequent to the opening of this appeal, the City provided a further response to the requestor and this office on April 8, 2025. In an email to this office and the City dated April 9, 2025, the requestor further objected to the City’s April 8th response. Following this One Ash burton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

David Shapiro, Esq. SPR25/0921 Page 2 April 16, 2025 correspondence, the City provided an additional response to the requestor and this office on April 15, 2025. 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). 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. Att’y 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. 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 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4).

David Shapiro, Esq. SPR25/0921 Page 3 April 16, 2025 Current Appeal In the current appeal, the requestor contends that the City is, “using fees to discourage and prevent public access to police misconduct records.” The requestor additionally requests that fees be waived, as they are “currently not in the position to pay any fees related to the requested records, and have demonstrated that disclosure of the records are in the public interest.” 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). The City’s Responses In its initial March 28, 2025 response to the March 19, 2025 request, the City provided a fee estimate of $1,100.00 and advised that the “approximately 25 files” in which the City identified may be responsive to the request “likely contain information that is exempt from disclosure pursuant to M.G.L. c.4, §7(26)(a), the statutory exemption.” In its April 1, 2025 response to the narrowed March 31, 2025 request, the City provided a revised fee estimate of $600.00, and stated: Narrowing the scope of the request to documents between February 26, 2022 and February 26, 2023 reduces the number of files to 14. The revised fee estimate is as follows: Estimated number of pages of documents: 14 files at estimated 100 pages per file = 1,400 pages Estimated time to review and redact: 1,400 pages at 1 minute per page = 23 hours 6 audio/video recordings at 30 minutes per recording = 3 hours

David Shapiro, Esq. SPR25/0921 Page 4 April 16, 2025 23 hours + 3 hours = 26 hours – first 2 hours free of charge = 24 hours 24 hours x $25/per hour (actual hourly rate exceeds $25.00) = $600.00 Total Estimated Fee: $600.00 In its April 8, 2025 response the City further explains, “[d]ue to the extensive nature of the records requested and the resources needed to compile and review the records, the City of Somerville cannot waive the associated fees.” In an email to the City and this office dated April 9, 2025, the requestor further objected to the City’s April 8th response and reiterated their request for a fee waiver. Subsequently, in its April 15, 2025 response, the City indicates that it “stands by its denial of the request for waiver of fees as stated in its April 8 letter.” Upon review of the City’s responses, I find that while the City explains in its initial March 28, 2025 response that the responsive records “contain information that is exempt from disclosure pursuant to M.G.L. c.4, §7(26)(a),” the City must clarify if the redactions as cited in its revised April 1, 2025 fee estimate are required by law, and state the applicable statutes, if any. Pursuant to the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). Further, although the City advises in its April 1st fee estimate that it would take “30 minutes per recording” to review and redact the responsive “audio/video recordings[,]” it is unclear why the City requires this much time per recording for review and redaction. The City’s fee estimate also lacks confirmation that the rate of $25 per hour is of the lowest paid employee who is capable of performing the task(s). Accordingly, the City must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). For the reasons discussed above, I find the City must revise its April 1st fee estimate or provide further explanation of how the fees assessed in its estimate are consistent with G. L. c. 66, § 10(d). This office encourages the requestor and the City to communicate further in order to facilitate producing records efficiently and affordably. The requestor may wish to further narrow the parameters of their request or include applicable factors to enable the search to be processed. Conclusion Accordingly, the City is ordered to provide the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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. The requestor may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

David Shapiro, Esq. SPR25/0921 Page 5 April 16, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Fourth Estate Journalism