Rebecca Mozdiez v. Westborough, Town of - Police Department (SPR 20252767)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 2, 2025 SPR25/2767 Kristi Williams Town Manager Town of Westborough 34 West Main Street Westborough, MA 01581 Dear Ms. Williams: I have received the petition of Rebecca Mozdiez appealing the response of the Town of Westborough (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 11, 2025, Ms. Mozdiez submitted a request for records, and following further correspondence with the Town, on September 10, 2025, Ms. Mozdiez narrowed her request as follows: Date Range: March 15, 2025 – August 28, 2025 Electronic communications containing specific keywords. For any communication found that matches these keywords, please include all associated attachments. Officer narratives or other reports are only requested if they are attached to or directly embedded within an email, text message, or other electronic communication that matches the keyword search. The search should be performed on the following electronic communication platforms, all of which can be searched by keyword: • Email correspondence • Text messages • Secure messaging applications, including internal agency apps used for communication with outside agencies Sent or received by Westborough Police Department personnel —limited to the following 10 [list of named individuals] to or from the following offices/agencies: • Middlesex County District Attorney’s Office (including all ADAs, clerks, and staff) • Worcester County District Attorney’s Office (including all ADAs, clerks, and staff) 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

Kristi Williams SPR25/2767 Page 2 October 2, 2025 • Marlborough District Court (including all clerks, judges, and staff) • Westborough District Court (including all clerks, judges, and staff) • Victim/Witness Advocate Office [a named individual] • Owen O’Leary’s Restaurant- [a specified email address] NOTE: Please include any correspondence regardless of keyword between any Westborough Police Department personnel and Owen O’Leary’s Restaurant … Keywords to search (include all variations, capitalization not required): [a list of 20 search terms.] This request specifically excludes logs from in-car computers (Mobile Data Terminals) and Computer-Aided Dispatch (CAD) systems. Alternative Proposal: If the Department maintains that electronic searches are insufficient, I propose a compromise: conduct the electronic keyword searches first (which should take minimal time), then supplement only if clearly responsive records are missing. This approach would dramatically reduce costs while ensuring completeness. The Town responded on August 22 and 27, and on September 9 and 12, 2025, providing a fee estimate. Unsatisfied with the Town’s response, and objecting to the fees, Ms. Mozdiez petitioned this office, and this appeal, SPR25/2767, was opened as a result. Subsequent to the opening of this appeal, the Town provided a further response to Ms. Mozdiez and this office on October 1, 2025. 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 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.

Kristi Williams SPR25/2767 Page 3 October 2, 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). 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 Appeal In her appeal petition, Ms. Mozdiez contends that the Town “failed to provide [a] proper fee breakdown,” that the Town “imposed unreasonable fees,” that “the Town failed to properly evaluate the [fee] waiver request and instead summarily denied it.” She also contends that she made “good faith efforts to narrow [the] scope,” and that “the Town provided contradictory and confusing correspondence designed to deter [her] request.” Fee Waivers Please be advised that 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

Kristi Williams SPR25/2767 Page 4 October 2, 2025 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). The Town’s Fee Estimate In its August 22, 2025 response, the Town provided an initial fee estimate of $3,900, and in a response on August 27, 2025, the Town further elaborated on its fee estimate. Following further correspondence, and the narrowing of Ms. Mozdiez’s request, on September 12, 2025, the Town provided an updated fee estimate of $500, and provided further explanation of its revised fee estimate on October 1, 2025. In its August 22nd response, the Town states the following: Given the scope of your request, it is not presently known how many exemptions may apply, but is likely that at a minimum, the following exemptions pursuant to G.L. c.4, §7(26) will apply to certain responsive records: Exemption (a) – records specifically or by necessary implication exempted from disclosure by statute. Exemption (c) – Personnel or medical files, or any other materials relating to a specifically named individual, “the disclosure of which may constitute an unwarranted invasion of personal privacy.” Exemption (d) – “Inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency.” Exemption (f) – “investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” This exemption authorizes the withholding of the identities of voluntary witnesses. Exemption (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.” . . . Pursuant to G.L. c.66, §10(d)(iii), the Town is not charging a fee for the first two hours of search and segregation time. The Town is entitled to charge the hourly fee of the lowest paid employee capable of performing the search, not to exceed $25.00 per hour. Search time will include locating responsive records, review and redaction of all records or portions thereof for any information that is legally required to be redacted, and preparation of copies of records to be provided to you. . . . You have requested copies of all records that involve communications between the Police Department and five separate court or law enforcement entities, plus Owen O’Leary’s, over a five-month period. Moreover, you have identified 39

Kristi Williams SPR25/2767 Page 5 October 2, 2025 “keywords” and asked for all documents that include any of these keywords. As noted above, most of the Department records cannot be searched electronically by keyword, so each officer or employee will need to perform their own search for records including any of the designated keywords. Each employee will then need to perform any redactions required pursuant to applicable legal exemptions. In its August 27th response, the Town clarifies the following: While your request involves 40 employees of the Department, in the event that you do provide the fee payment, the search would be performed by a single staff member. Nonetheless, your request involves a search of virtually all records created or received by 40 employees over a nearly five month period involving the six named entities, as it is most likely that all such records involving the five court or law enforcement entities have at least one of your 39 keywords. Your revised request specifically includes electronic records and communication. This remains very broad terminology and it does not narrow the scope of the search. As stated in the response, while electronic mail may be searched by keywords, the review you request must encompass not only email correspondence but also all associated reports, including incident reports, arrest reports, and criminal complaints. To ensure completeness, all attachments linked to these records must also be examined. Due to the limitations of the Department’s current records management software, searches are restricted primarily to keyword queries. While the Department would conduct a search of officer narratives using this method, it cannot ensure that all relevant material would be captured electronically. Accordingly, attachments and records must be reviewed manually. Moreover, as previously stated, your keyword list will involve virtually all records involving the five governmental entities. Our initial response cited several exemptions that will likely be applicable, and for any records in electronic format that require redaction, this will also be required to be performed manually and a new redacted copy created. In its September 12th response, the Town updated its fee estimate and further explained the following: As noted in our first response, while the email system is straightforward for a keyword search, the same is not the case with the Department’s other document systems – while some keyword searching is possible, it is limited. For instance, a keyword such as “Complaint” does not appear in the Department system’s searchable fields, even though we know it is present in the documents themselves. Because it is a standard term included on nearly every form the Department sends to the court, locating the responsive records requires a manual review of all documents associated with each report. This example highlights the challenge we face in conducting an efficient electronic search. Therefore, notwithstanding your “Alternative Proposal,” it is a certainty that the electronic keyword search will not locate all responsive documents, requiring the manual search.

Kristi Williams SPR25/2767 Page 6 October 2, 2025 With your reduced scope, the amount of time required for a Department administrative staff employee to perform the search has been greatly reduced, but our good faith estimate is that it will still take more than 22 hours for a thorough search to be completed. However, in an attempt to resolve this issue, the Town is willing to reduce the fee to $500.00. General Laws Chapter 66, §10(d) authorizes the Town to assess a reasonable fee to respond to your request for records. Pursuant to G.L. c.66, §10(d)(iii), the Town is not charging a fee for the first two hours of search and segregation time. The Town is entitled to charge the hourly fee of the lowest paid employee capable of performing the search, not to exceed $25.00 per hour. Search time will include locating responsive files and records, reviewing and redacting any records or portions thereof for any information that is legally required to be redacted, and preparation of copies of records to be provided to you. Records in electronic format would be provided to you in that format. While we do not inquire what the purpose of any request is, we do not find that a showing has been made that this records request is in the “public interest” meriting a waiver of fees for a request requiring such extensive search time. Employee search and segregation time: Police Department administrative staff employee: 22 hours at $25 per hour = $550.00, minus first two hours of search time = $500.00 In its October 1st response, the Town explains the following 1. Estimated Fee Breakdown: The records request initially involved a search for records maintained by all Department employees (40 in total) over nearly five full months (the most recent request has narrowed that to 10 employees). The Department’s explanation of the work necessary to perform the search was locating responsive files and records, manually reviewing most of such records (see below), the likely obligation to perform redactions of many of the responsive records, and then preparing copies of any non-electronic records for the requester. Such searches and preparation would be performed by administrative staff of the Department. This description of the work necessary to locate all responsive Department records is standard for such office searches and sufficiently describes the steps to locate and provide copies (redacted where required) when an electronic search is not sufficient. 2. Fee Estimate: I first note that in my response of August 22, I incorrectly stated that all 40 affected employees would each need to perform their own four-hour search in order to comply. In fact, to the extent the search was required, an administrative staff employee in the Department would perform the searches, which would comply with the obligation to have the lowest paid employee perform the actual work. I further submit, however, that for each request, the Department has discussed the work required with its administrative staff and

Kristi Williams SPR25/2767 Page 7 October 2, 2025 Information Technology staff. In each case, it is estimated that a complete and thorough search, as is always required, will take at least four hours per employee. This led to the current fee estimate of $500, provided on September 12, 2025. While four hours per employee may be an underestimate, the Department wanted to acknowledge Ms. Mozdiez’ own efforts to reduce the scope of her original request. As stated in the Department’s responses, a keyword search for electronic records will only provide an incomplete search, except for emails. As indicated in the responses, the somewhat outdated software in use by the Department can only perform a keyword search of officers’ narratives. In the vast majority of cases, however, the Department files that would go to the five named state or county offices (less likely for Owen O’Leary’s) will have attachments, reports and other accompanying materials that are not susceptible to a keyword or other electronic search. In her September 10th revised request, Ms. Mozdiez reduced the number of employees to 10 and the number of “keywords” to 20, and asked that a search beyond an electronic keyword search only be performed if “clearly responsive records” are missing. As stated in the September 12th response, however, for the reason just cited, it is a certainty that an electronic keyword search will fail to locate all responsive records. Rather than fail to provide responsive records, therefore, electronic and manual searches and reviews are required. Moreover, as stated in the first two Department responses, most of the keywords in Ms. Mozdiez’ requests are so common in police reports and communications that it will still include a very significant number of records involving the 10 named Department employees, many of which cannot be searched electronically. If the fee is paid and search performed, to the extent that the process takes less that the 22 hours estimated, a portion of the fee would be refunded. Reasonableness of the Fee Estimate In its fee estimate, the Town has explained that it is not charging for the first two hours of work, and that it is charging at an hourly rate less than that attributed to the lowest paid employee who has the necessary skills to perform the tasks. Additionally, the Town has explained the tasks involved in searching for the responsive records. However, in accordance with the Public Records Law, 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 Town is advised that information that is “required by law” to be segregated or redacted is found in statutes that explicitly indicate that certain records or information are not public records. Some common examples are the student record statute (G. L. c. 71, § 34D), the Criminal Offender Record Information (CORI) Act (G. L. c. 6, § 167), and laws regarding the confidentiality of domestic violence records (G. L. c. 41, § 97D; G. L. c. 41, § 98F; G. L. c. 209A, § 8). These statutes operate through Exemption (a) of the Public Records Law. Segregation or redaction under the attorney-client privilege is also interpreted to

Kristi Williams SPR25/2767 Page 8 October 2, 2025 be “required by law.” Accordingly, the Town must provide further explanation as to whether the redactions described in its fee estimate are required by law. For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Town is ordered to provide Ms. Mozdiez 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. Ms. Mozdiez may further appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Rebecca Mozdiez Brian W. Riley, Esq.