Maggie Congdon v. Southborough, Town of - Police Department (SPR 20252853)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 6, 2025 SPR25/2853 Lieutenant Sean P. McCarthy Records Access Officer Southborough Police Department 32 Cordaville Road Southborough, MA 01772 Dear Lieutenant McCarthy: On September 29, 2025, this office received your petition on behalf of the Peabody Police Department (Department) seeking permission to waive statutory limits to fees and 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, Maggie Congdon, of Arbella Insurance. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On September 16, 2025, Ms. Congdon requested, “body worn camera footage from [an identified] officer for auto accident on 8/10/25, 9:11AM.” 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. The 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. 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 P. McCarthy SPR25/2232 Page 2 October 6, 2025 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; 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). Petition to Assess Fees In its petition, in addition to charging for segregation and redaction required by law pursuant to Exemption (a), the Department requests permission to charge for segregation and redaction under Exemption (c) and provides the following information in support of its request: The records requested contain information which must be redacted from the records pursuant to this exemption. The records requested contain information which, if disclosed, would constitute an unwarranted invasion of personal privacy. Such information contains intimate details and the privacy interests involved outweigh the public interests in the disclosure of that information. In making that determination, the department has considered the following factors: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly

Lieutenant Sean P. McCarthy SPR25/2232 Page 3 October 6, 2025 personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Department of Agricultural Resources, 477 Mass. 280, 292 (2017). In light of the Department’s 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 redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the Department may assess a fee for the segregation and redaction of such exempt material. Fees in Excess of $25.00 per Hour In its petition, the Department requests permission to charge a fee of $53.16 per hour, and provides the following in support of its request: The lowest paid employee who has the necessary skill to complete the segregation and redaction is, Lt. Sean McCarthy whose normal hourly rate is $53.16. This is because he is the only records access officer, with access to the BWC software system, and the lowest paid one certified to understand the public records law. Subsequent to the opening of this petition, in an email to Ms. Congdon and this office on October 5, 2025, the Department provided the following additional information: The process of redacting body worn camera footage is technically demanding and requires specialized training in the Axon redaction platform. Axon’s software involves advance tools for motion tracking, audio filtering, and pixel-based masking, all of which must be applied manually to ensure compliance with privacy laws. The knowledge and experience to perform these redactions falls solely on myself. Each video must be reviewed frame by frame to identify and obscure sensitive material, including victims, juveniles, and protected information. Because this work is highly specialized and cannot be reasonably performed by untrained personal, I believe it meets the criteria for exemption ‘C’. In light of the Department’s 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 assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). The Department may assess an hourly rate limited to $53.16 for the segregation and redaction of the responsive body worn camera footage. Conclusion Accordingly, to the extent the responsive records contain the exempt information as described above, the Department may assess a fee for segregation and redaction. Additionally, the Department may assess a fee limited to $53.16 per hour.

Lieutenant Sean P. McCarthy SPR25/2232 Page 4 October 6, 2025 Please note, Ms. Congdon 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: Maggie Congdon