Corey Kelleher v. Lowell, City of - Police Department (SPR 20251762)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 2, 2025 SPR25/1762 Jacqueline Cook Keeper of Records Lowell Police Department 50 Arcand Drive Lowell, MA 01852 Dear Ms. Cook: I have received the petition of Corey Kelleher appealing the response of the Lowell 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 May 1, 2025, Mr. Kelleher requested “all report[s] and investigations and body cameras,” relating to the following identified incidents: [1] 4/18/2025: [identified officer]. Location Lowell PD[;] [2] 4/22/2025: [identified officers]. Location Lowell Court[;] [3] 4/28/2025: Location Car Pulled Over[;] [4] 5/1/2025: [identified officer]. Location Lowell Court[;] [5] 5/23/2025: [identified officer]. Record Request. The Department responded on June 12, 2025, providing a fee estimate. Unsatisfied with the Department’s response, Mr. Kelleher petitioned this office and this appeal, SPR25/1762, 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 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, 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

Jacqueline Cook SPR25/1762 Page 2 July 2, 2025 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). The Department’s June 12th Response In its June 12, 2025 response, the Department identified five responsive body worn camera videos and stated that Mr. Kelleher’s request was received on May 23, 2025. The Department assessed a fee of $400.00 to provide Mr. Kelleher with the responsive records. In support of its fee estimate, the Department stated as follows: Pursuant to MGL c. 66, §10(d), the City may assess a reasonable fee for the production of public records. This includes employee time to search for, compile, segregate and redact or reproduce a record requested, if the City is required to devote more than two hours to such tasks. The estimated fees and time associated with this request are itemized below[:] Time: 18 hours x $25/hour (after first 2 hours) Total hours charged: 16 hours Total amount: $400.00[.] G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Here, Mr. Kelleher submitted his request on May 1, 2025. Where the Department states that the request was received on May 23, 2025 and it provided a response on June 12, 2025, I find it is unclear whether the Department complied with G. L. c. 66, § 10(e). Specifically, the Department must demonstrate whether it provided a response to Mr. Kelleher’s request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request. It is also unclear whether the Department possesses additional records responsive to Mr. Kelleher’s request, other than the identified body worn camera videos. Specifically, the Department must clarify whether it possesses any “reports and investigations” related to the identified incidents. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii).

Jacqueline Cook SPR25/1762 Page 3 July 2, 2025 Conclusion Accordingly, the Department is ordered to provide Mr. Kelleher 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. Mr. Kelleher 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: Corey Kelleher