David Webb v. Worcester, City of (SPR 20253618)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 19, 2025 SPR25/3618 Alexandra H. Kalkounis, Esq. City Solicitor City of Worcester 455 Main Street Worcester, MA 01609 Dear Attorney Kalkounis: I have received the petition of David Webb appealing the response of the City of Worcester (City) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On November 14, 2025, Mr. Webb requested, “BWC from the officer who located [an identified individual’s] wallet and phone after MA state police kneeled on his neck and WPD carried him into their wagon 10/25/25.” The City responded on December 3, 2025, providing a fee estimate. Unsatisfied with the City’s response, Mr. Webb petitioned this office and this appeal, SPR25/3618, 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 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. See 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. 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

Alexandra Kalkounis, Esq. SPR25/3618 Page 2 December 19, 2025 If there are any fees associated with a response a written, good faith estimate must be provided. See 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 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. 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 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 two (2) hours of employee time to search for compile, segregate, redact or reproduce the record of 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 the 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 City’s December 3rd Response In its December 3, 2025 response, the City provided a fee estimate of $165.00 and stated the following: The City located approximately 164 minutes of responsive Body-Worn Camera (BWC) footage… Note the City’s fee estimate only includes fees for time spent segregating and redacting a requested record when such segregation or redaction is required by law… Material reviewed will be redacted or withheld under exemption (a) as required by law including but not limited to the following statutes: M.G.L. c. 93H and 940 C.M.R. 27.00… M.G.L. c. 66, § 10B…M.G.L. c. 119, § 60A…M.G.L. c. 41,

Alexandra Kalkounis, Esq. SPR25/3618 Page 3 December 19, 2025 §97D… At a minimum, completion of the intial search, review, and redaction process outlined above requires 3 minutes of labor per one minute of footage, not including finalization of the record, and preparation of the written response. The hourly rate for the lowest paid employees capable of performing the search for the records, performing all tasks associated with request, and completing review and redaction exceeds $25.00 per hour. The City has reduced the hourly labor charges to $25.00 per hour. The City may not charge for the firtst two hours of labor required to fulfill this request. The estimated costs have been calculated as set forth below. 164 minutes BWC footage x 3 minutes labor per minute of footage = 492 (8.2 hours) 8.2 hours @ $25.00 per hour = $205 Minus 2 hours (no charge) @ $25.00 per hour = -$50.00 Total fee: $165 Current Appeal In his appeal, Mr. Webb states, “I am appealing the substantive nature of Worcester’s response to my public record request, as well as the reasonableness of the fee estimate…In this particular matter, [o]n November 14th, I filed a public records request with the [C]ity…On December 3rd, the [C]ity responded assessing a fee of $165 to proceed with my request.” In a prior determination issued by this office on December 11, 2025, it was found that the records related to the identified individual at issue in this request are the subject of an ongoing criminal litigation. See SPR25/3519 Determination of the Supervisor of Records (December 11, 2025). In the prior determination, Mr. Webb requested similar records related to the identified individual from the Massachusetts Department of State Police. Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation.

Alexandra Kalkounis, Esq. SPR25/3618 Page 4 December 19, 2025 This office has reviewed the trial court’s docket and verified that the criminal litigation relating to the records that are the subject of Mr. Webb’s request, is active and ongoing in the Worcester District Court. See Commonwealth v. Styve M. Tchoutoua, Worcester District Court, Docket No. 2562CR006371 (December 1, 2025). Conclusion In light of the pending litigation, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: David Webb