Mass Accountability Network v. Salem, City of - Legal Department (SPR 20251104)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 30, 2025 SPR25/1104 James F. Wellock, Esq. Assistant City Solicitor City of Salem, Legal Department 93 Washington Street Salem, MA 01970 Dear Attorney Wellock: On April 22, 2025, this office received your petition on behalf of the City of Salem (City) seeking permission to charge for time spent segregating or redacting responsive records, a waiver of statutory limits on fees that may be assessed in responding to the request, and relief from the obligation to produce 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, I understand that the City furnished a copy of this petition to the requestor, Mass Accountability Network (requestor). G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On April 7, 2025, the requestor sought the following records: [A]ny and all public records, including but not limited to emails, memos, internal communications, roll call notes, or reports, generated or received by the Salem Police Department between October 29, 2024 and the date of this request, which reference any of the following names or entities [list of specified names.] This request specifically includes, but is not limited to, records referencing or involving: • Communications involving or initiated by [two named individuals;] • Communications with or references to any Probation Officer or Probation Department regarding my behavior, activities, or reporting of alleged conduct; • Mentions in roll call briefings or command staff meetings; • Any efforts to document or monitor my filming, protests, complaints, or First Amendment activities. In an email to this office on April 22, 2025, the requestor objects to the City’s petition. 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

James F. Wellock, Esq. SPR25/1104 Page 2 April 30, 2025 Petitions for an Extension of Time and Relief from the Obligation to Provide Records 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; (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) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(b). Request for Relief In its petition, the City seeks “relief from an unduly burdensome public records request submitted to the Salem Police Department.” In support of its request for relief, the City argues the following: As explained below, the requestor states this enormous request is submitted in retaliation for a dissatisfying interaction the requestor recently had with a member of the police department. For this reason, and as further detailed below, the city requests relief. . . . By his own words, the requestor asserts that this submission requesting a plethora of public records of all possible kinds is an act of retaliation and based on its volume and burden, is designed to harass or intimidate. He then invokes specific

James F. Wellock, Esq. SPR25/1104 Page 3 April 30, 2025 allegations under G.L. c. 265, § 37 (Civil Rights Act) and refers to Salem Police Department policies regarding conclusory allegations of civil rights “violations.” This context is relevant for two reasons: 1. The request is framed not as a general inquiry into government conduct, but as a direct reaction to a personal interaction between the requester and law enforcement personnel regarding his own probation status. The requester seeks expansive access to internal communications across the entire department, including text messages and meeting discussions and ill-defined records we do not even recognize as being records we possess, based on a singular event that appears to involve his own case. The names and organizations mentioned (Thomas Mattson, Blue POV, Mass Accountability) are the various pseudonyms he operates under. 2. There are indicators that the request may be retaliatory or intended to harass or intimidate law enforcement personnel. The request’s phrasing expresses dissatisfaction with perceived retaliatory conduct by police officials and refers to specific officers by name and rank, making the request inherently personal in tone. Moreover, the breadth and lack of specificity suggest a desire not just for records, but for a fishing expedition potentially aimed at monitoring or challenging the internal operations of the department in response to an individual grievance. Based on the information provided in the City’s petition, I find that the City has not demonstrated that the request is frivolous and not intended for the broad dissemination of information to the public about actual or alleged government activity, as required by G. L. c. 66, § 10(c). Consequently, I am unable to grant the City’s request for relief from the obligation to provide records. 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.

James F. Wellock, Esq. SPR25/1104 Page 4 April 30, 2025 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 to Assess Fees In its April 22nd petition, in addition to charging for segregation and redaction required by law under Exemption (a), the City argues the following in support of its request to charge for segregation and redaction under Exemptions (c), (f), and (n): The request is extraordinarily broad and requires department-wide searches for numerous communications and formats (e.g., emails, texts, meeting notes, CAD/RMS entries, internal memos, and bodycam references) over a span exceeding five months. Compliance would involve manually reviewing unindexed data, potentially redacting sensitive information under multiple exemptions in G.L. c. 4, § 7(26), including (a) (CORI, domestic violence), (c), (f), and (n). The records requested are described by overly broad categorizations such as ‘all records related to...’ that fail to meet the minimum threshold for a reasonable description under the public records law. . . . Also, due to the breadth and scope of this request as all encompassing, the city requests permission to charge to review the records for redaction under

James F. Wellock, Esq. SPR25/1104 Page 5 April 30, 2025 Exemption C, the privacy exemption as these records may contain the names or information of persons the disclosure of which would constitute an unwarranted invasion of privacy or cause an ordinary person embarrassment. In light of the City’s petition, I find the City 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 City may assess a fee for the segregation and redaction of such exempt material. The City is reminded that the current language of Exemption (c) prohibits its application to records related to law enforcement misconduct investigations. See G. L. c. 4, § (26)(c). Fee in Excess of $25.00 per Hour In its petition, the City states the following concerning its request to charge a fee in excess of $25.00 per hour: There is only one attorney available to perform this task in the Solicitor’s office and due to a scheduled vacation and other obligations of the city’s legal department, this person is unable to complete the anticipated document review in time to comply with the statutory deadlines. Should the requested relief not be granted, the city wishes to hereby reserve its right petition to charge greater than $25 per hour so that it can hire outside legal counsel to perform the review and statutorily required redactions. In an email to this office on April 29, 2025, an attorney for the City clarifies that the City seeks to charge a rate of $290 per hour. I find the City 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 City may assess a fee limited to $75.00 per hour for attorney review. Conclusion Accordingly, I find that to the extent the responsive records contain the exempt information described above, the City may assess a fee for segregation and redaction. Further, as described above, the City may assess a fee limited to $75.00 per hour for attorney review. However, I am unable to grant the City’s request for relief from the obligation to provide records. This office encourages the requestor and the City to communicate directly 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 to 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

James F. Wellock, Esq. SPR25/1104 Page 6 April 30, 2025 produce records sought more efficiently and affordably). Any subsequent fee estimate from the City must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, the requestor 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: Mass Accountability Network