Jed Mahoney, Esq. v. Fall River, City of - Police Department (SPR 20251150)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 5, 2025 SPR25/1150 Lieutenant Matthew Mendes Office of Professional Standards Fall River Police Department 685 Pleasant Street Fall River, MA 02721-4305 Dear Lieutenant Mendes: I have received the petition of Jed Mahoney, Esq., of J. Mahoney & Associates, appealing the response of the Fall River 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 April 3, 2025, Attorney Mahoney requested “… all materials compiled by the Internal Affairs of the Fall River police Department for [an identified individual].” The Department responded on April 4, 2025. Unsatisfied with the response, Attorney Mahoney petitioned this office and this appeal, SPR25/1150, was opened as a result. 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

Lt. Matthew Mendes SPR25/1150 Page 2 May 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 April 4th Response In its April 4, 2025 response, the Department assessed a fee of $2,998.94 to provide the responsive records, detailed as follows: The search and segregation costs have been calculated using the hourly rate of $48.37 hr. In order to comply with your request, it will take approximately 62 hours of search and segregation time, based upon the following:  Document Collection (10-40hrs)  Data Extraction (10-40hrs)  Detailed Redaction/Preparation to comply with State Law (20-80hrs)  Quality Assurance and Final Review (8hrs)  Communication and Delivery (1-3hrs) The total number of hours charged will be 60 hrs … Although the Department has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 62 hours of employee time, the Department has not provided sufficient explanation of why 62 hours of employee time is necessary. Specifically, the Department must advise how many hours it requires to search and how many hours it requires to segregate and redact the records in order to comply with the records request, and what tasks are necessary to produce the responsive records. The Department is advised that under 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 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). Although the Department has indicated that redactions will be performed “to comply with State Law,” the Department must clarify under which statute it intends to redact the responsive records. The Department is further advised that under the Public Records Law, 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 skill necessary to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. G. L. c. 66, § 10(d)(iii). Municipalities may charge more than $25 per hour only if such rate is approved by the Supervisor under a petition pursuant to G. L. c. 66, § 10(d)(iv). Consequently, where the Department has not submitted a petition under G. L. c. 66, § 10(d)(iv),

Lt. Matthew Mendes SPR25/1150 Page 3 May 5, 2025 seeking permission to charge in excess of $25 per hour, I find the Department may not assess an hourly rate greater than $25 per hour. For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fee of $2,998.94 assessed in its April 4, 2025 estimate is consistent with G. L. c. 66, § 10(d). This office encourages Attorney Mahoney 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 Attorney Mahoney 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. Attorney Mahoney 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: Jed Mahoney, Esq.