George and Jen Burden v. Lunenburg, Town of - Police Department (SPR 20252210)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 8, 2025 SPR25/2210 Lieutenant Sean Zrate Records Access Officer Lunenburg Police Department 655 Massachusetts Avenue Lunenburg, MA 01462 Dear Lieutenant Zrate: I have received the petition of George and Jennifer Burden appealing the response of the Lunenburg 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 June 11, 2025, Mr. and Mrs. Burden requested, “…all police reports or logs created since January 1, 2010 that involved any of the following [17 identified individuals].” Previous Appeal and Petitions This request was the subject of a previous appeal from Mr. and Mrs. Burden and two previous petitions from the Department. See SPR25/1876 Determination of the Supervisor of Records (July 9, 2025); SPR25/1879 Determination of the Supervisor of Records (July 8, 2025); and SPR25/1908 Determination of the Supervisor of Records (July 9, 2025). In my July 8th and July 9th determinations, I granted the Department an extension of 30 business days in responding to the request, but declined to grant the Department’s request for relief from the obligation to provide records. The Department responded on July 25, 2025 and July 28, 2025, providing a fee estimate. Unsatisfied with the Department’s responses, Mr. and Mrs. Burden petitioned this office and this appeal, SPR25/2210, was opened as a result. While this appeal was pending, the Department provided a supplemental response on July 29, 2025. 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). 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

Lieutenant Sean Zrate SPR25/2210 Page 2 August 8, 2025 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 25th and July 28th Responses In its July 25, 2025 response, the Department assessed a fee of $225.00 to provide the responsive records. In support of the fee estimate, the Department stated as follows: In order to comply with your request a reasonable fee is being charged… the lowest paid employee who has the necessary skill to complete the search and segregation is the front desk clerk whose hourly rate is $26.64. The search and segregation costs have been calculated using the maximum hourly rate of $25.00 per hour of search and segregation time, based upon the following: A combined total of (458) pages of records which had to be located, printed, then manually redacted and scanned into PDF files and saved to a thumbdrive.  2 hours X $25.00 per hour = $50.00 ([an identified officer] 7/11/2025 7am-9am)  7 hours X $25.00 per hour = $175.00 ([an identified officer] 7/11/2025 8am-3pm) Total Search and Segregation Costs: $225.00 Medium Costs: The requested files are too large to be emailed and will need to placed on a storage device, the Department has assessed a fee on the medium you choose.  Thumbdrive 16GB. = $3.88 (per USB drive)  DVD-R = .25 cents (per disk)  Paper Copies of Files = $22.90 (0.05 cents per page) In a reply to the Department on the same day, Mr. and Mrs. Burden sought clarification regarding the search and segregation time as well as the “media options” referenced in the fee estimate.

Lieutenant Sean Zrate SPR25/2210 Page 3 August 8, 2025 In a further response on July 25, 2025, the Department stated: I really broke everything down for you quite nicely. Also, because these documents are neither a “public log” or “press log,” they are not freely available for public inspection. Because certain redactions are required by law, each record individually needs to be inspected and physically redacted before it can be released to you. Because of this, you will need to choose which listed media option you would like to receive your requested records on. You will only be charged for what you have selected. In a second reply to the Department on July 25, 2025, Mr. and Mrs. Burden stated, “[c]an you please breakdown further the cost for the search, segregation and redaction separately. It appears excessive for nine hours… Before we commit to having the files provided, we want to make sure the cost is accurate and can’t be reduced.” Mr. and Mrs. Burden also made a further request for “a formal response indicating the lowest paid staff who could perform the work.” In its July 28, 2025 response, the Department stated, “[w]e will not be utilizing more time and resources to further break down the cost other than what has already been provided to you.” Additionally, the Department acknowledged Mr. and Mrs. Burden’s further request and stated: Please be advised that, due to the volume of requests that you have recently submitted, the Department is unable to search for, compile, reproduce, and, if necessary, redact and/or segregate the responsive records within the statutory 10- business-day timeframe. Therefore, pursuant to G.L. c. 66, §10(b)(vi), the Department is extending said timeframe and making the new due date for the Department’s response August 22, 2025. Rest assured, we are working diligently to respond to your request in accordance with the Commonwealth’s Public Records Law. Current Appeal In their appeal petition, Mr. and Mrs. Burden stated, “[the Department]’s response is vague and appears to be an attempt to delay the process further. We do not agree with the implication that additional time is needed, especially given the pattern of delays we have already experienced. We are concerned that this continued lack of transparency constitutes an obstruction of justice.” In a supplemental response on July 29, 2025, the Department stated: Mrs. and Mr. Burden have requested fifteen years of police reports from (17) individuals, which is a large request to fulfill… Over 458 pages of documents had to be printed and visually checked and physically redacted due to exemptions by law regarding personal information… [N]ine hours were spent preparing this request for the Burdens… who scrutinized the amount of work that went into fulfilling this request. The Burdens then elected to file another records request for

Lieutenant Sean Zrate SPR25/2210 Page 4 August 8, 2025 the department to prove who the lowest paid employee was that could fill a request, before paying the fee and receiving their records… I believe this to be a fair fee to be charged for the amount of time and effort that this department has committed. Mr. and Mrs. Burden replied on July 30, 2025, “[w]e are growing increasingly concerned by the continued delays in producing records related to our requests… the lack of timely and transparent communication only adds to our concern.” Fee Waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). Reasonableness of the Fee Estimate Although the Department stated that it took 9 hours to produce and redact the responsive records, it is unclear why the Department required this much time. The Department must advise how much time was needed to search and how much time was needed to segregate and/or redact under the law. Additionally, if redactions were required, I find the Department must provide information about whether the responsive records contain information that is required by law to be segregated or redacted, as well as the applicable statutes, if any. Further, although the Department stated it possesses over 458 pages of responsive documents, it is uncertain how many minutes per page the Department required to segregate or redact the records. Accordingly, the Department must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Pursuant to 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 under 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). Consequently, the Department must also clarify whether its fee estimate includes time for segregation or redaction not required by law.

Lieutenant Sean Zrate SPR25/2210 Page 5 August 8, 2025 For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fee estimate of $225.00 is consistent with G. L. c. 66, § 10(d). This office encourages Mr. and Mrs. Burden and the Department to communicate to facilitate providing records more efficiently and affordably. Mr. and Mrs. Burden may wish to narrow their request. 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. G. L. c. 66, § 10(b)(vi) Regarding their July 25, 2025 request for records “indicating the lowest paid staff who could perform the work,” Mr. and Mrs. Burden are advised that pursuant to G. L. c. 66, § 10(b)(vi), a records access officer may identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided that, for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. Where the Department has indicated that it intends to provide a response to this request by August 22, 2025, which is 20 business days from the initial receipt of the request and within the allowed statutory timeframe, the basis for this portion of the appeal is unclear. If issues remain once Mr. and Mrs. Burden receive the response, or if the Department fails to provide a response within the statutory timeframe, Mr. and Mrs. Burden may file an appeal within ninety (90) days. See 950 C.M.R. 32.08(1). Conclusion Accordingly, the Department is ordered to provide Mr. and Mrs. Burden 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. Sincerely, Manza Arthur Supervisor of Records cc: George and Jennifer Burden