Robert Setterbo v. Dartmouth, Town of - Police Department (SPR 20251985)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 16, 2025 SPR25/1985 Nicole Perullo Police Clerk Dartmouth Police Department 1390 Tucker Road Dartmouth, MA 02747 Dear Ms. Perullo: On July 9, 2025, this office received your petition on behalf of the Dartmouth Police Department (Department) requesting 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, Attorney Robert Setterbo. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On June 25, 2025, Attorney Setterbo requested the following: All [d]ocuments and records specified in each of the number paragraphs which follow shall before the time period from January 1, 2022, up to and including the date of production of said documents concerning [an identified individual] . . .: [1] All documents related to compensation, including without limitation salary, advances, bonus, deferred compensation for the period specified. Responsive documents will include but are not limited to: pay statements, Forms W-2 and 1099, overtime, shift differentials, and bonuses in any form, canceled checks, cash receipts, and receipts for reimbursement[;] [2] All documents or record relating to employment benefits, including but no limited to health insurance, life insurance, vacation and/or retirement benefits, personal expenses and reimbursements, available to [an identified individual] through his employment[;] [3] With respect to a profit sharing, pension, annuity, SMART Plan, 401(k), 403(b), defined contribution, defined benefit, or other type of retirement account, please product statements of account(s), including any records of request for loans or to withdraw funds records of an such loans or withdrawals[;] 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

Nicole Perullo SPR25/1985 Page 2 July 16, 2025 [4] Copies of all compensation and/or employment agreements and/or consulting agreements[;] [5] Records reflecting [an identified individual’s] position and responsibilities, including any changes in position, responsibilities, and compensation[;] [6] Contracts of employment describing the terms and conditions of employment, including but not limited to annual salary[;] [7] Documents evidence Details work, including the date(s), time(s), Town(s), Location(s) hours worked, rate of pay and total pay for each instance of Details work during the requested period[;] [8] Records reflecting [an identified individual’s] retirement and retirement elections, including correspondence (e.g. emails, memoranda, letters etc.) related thereto[;] [9] Copies of [an identified individual’s] entire personnel file, including but not limited to reports, memorandums, commission agreements, communications (including but not limited to instant messages, emails, memos, and the kind) related to his schedule or compensation, reviews, reprimands, warnings, and any other documents in his personnel file[;] [10] Records relating to [an identified individual’s] medical conditions, limitations, diagnoses, including any workplace accommodations related thereto. Subsequently on July 9, 2025, Attorney Setterbo narrowed his request to “. . . not include the 50,458 emails requested in paragraph 8.” Petition to assess fees – Municipalities The 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 or to charge in excess of $25 an hour for the provision of public records. The

Nicole Perullo SPR25/1985 Page 3 July 16, 2025 first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my understanding 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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, in addition to charging for segregation and redaction required by law pursuant to Exemption (a) of the Public Records Law, the Department requests permission to charge for segregation and redaction under Exemptions (b), (c), (f), and (o). The Department provides the following information: with respect to the request, we have the following records: 1 Brotherhood Contract, Pay Scale Documents, Paycheck History, Health Insurance Benefits Docs, Deferred Compensation Document, Form A, Form D, Retirement

Nicole Perullo SPR25/1985 Page 4 July 16, 2025 Documents, Training File, and the Personnel File for [an identified individual], for the records requested. [E]xemption (b): This exemption applies to “records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding”. The records requested contain information that showcases techniques and tactics that should be kept confidential to not compromise the safety of the officers utilizing such techniques. If the information being withheld was public knowledge it would greatly inhibit the effectiveness, overall success and proper performance of the department. [E]xemption (o): The home address, personal email address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 6. [E]xemption (c): This exemption applies to “personnel and medical files or information; also, any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy”. The records requested contain information which, if disclosed, would constitute an unwarranted invasion of personal privacy and the privacy interests involved outweigh the public interests in the disclosure of that information. … [E]xemption (f): This applies to investigatory exemptions including witness and or victim information. Based on the information provided in its fee 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 segregation or redaction. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, I find the Department has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive

Nicole Perullo SPR25/1985 Page 5 July 16, 2025 records contain the exempt information as described above, the Department may assess a fee for segregation and redaction. Additionally, I encourage the parties to communicate further to enable the Department to provide records in an efficient and affordable manner. When preparing a fee estimate for the provision of the requested records, the Department is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Department must provide a response to Attorney Setterbo within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Please note, Attorney Setterbo 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: Robert Setterbo, Esq.