Corey Kelleher v. Lowell, City of - Police Department (SPR 20252134)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 30, 2025 SPR25/2134 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 23, 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 initially responded to the request on June 12, 2025. Previous Appeal This request was the subject of a previous appeal. See SPR25/1762 Determination of the Supervisor of Records (July 2, 2025). In my July 2nd determination, I ordered the Department to clarify whether it possesses additional responsive records and whether it complied with G. L. c. 66, § 10(e). The Department responded on July 16, 2025. Unsatisfied with the Department’s response, Mr. Kelleher petitioned this office and this appeal, SPR25/2134, was opened as a result. 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 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 SPR25/2134 Page 2 July 30, 2025 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. Attorney 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 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). The Department’s July 16th Response In its July 16, 2025 response, the Department provided Mr. Kelleher with “responsive reports” and stated, “[p]lease be advised that unfortunately we are unable to confirm the exact date your request was received by our RAO subsequent your hand delivery to an officer assigned to our temporary Main Desk setup on May 23, 2025.”

Jacqueline Cook SPR25/2134 Page 3 July 30, 2025 Additionally, the Department assessed a fee of $400.00 to provide Mr. Kelleher with five identified responsive body worn camera videos. 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[.] Current Appeal In his appeal petition, Mr. Kelleher stated, “[d]espite two timely and properly submitted requests, I did not receive any response until June 12, 2025 and well beyond the 10-business day deadline established under M.G.L. c. 66, § 10(b). Even so, the Department issued a $400 fee, which is unlawful under M.G.L. c. 66, §10(e) because they failed to meet the response deadline.” Mr. Kelleher also argued that the response “included only a single document,” and that reports for four of the identified incidents remain outstanding. 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 23, 2025. Where the Department initially responded on June 12, 2025 and cannot confirm the date the request was received by its records access officer, I find that the Department has not met its burden to show that it complied with G. L. c. 66, § 10(e) by providing a response to Mr. Kelleher within 10 business days of receipt of the request. Consequently, the Department may not assess a fee for this public records request. Where the Department may not charge a fee for the responsive records, the Department is advised that to the extent possible, it must provide the remaining responsive records on a rolling basis. It is also unclear whether the Department possesses additional records responsive to Mr. Kelleher’s request, other than the identified body worn camera videos and the provided report(s). Specifically, the Department must clarify whether it possesses any additional reports 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 SPR25/2134 Page 4 July 30, 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