Brian Freskos v. Quincy, City of - Police Department (SPR 20170451)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 22, 2017 Lieutenant Terence McDonnell Quincy Police Department Inspector of Divisions 1 Sea Street Quincy, MA 02169 Dear Lieutenant McDonnell: I have received your petition on behalf of the Quincy Police Department (Department) to charge for time spent segregating or redacting public records in responding to requests made by Brian Freskos for records related to firearms. G. L. c. 66, § 10(d )(iv). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv)(2). The Supervisor of Records (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, § lO(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. Id. Analysis 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 or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. Id. It is my determination that this request was not made for a commercial purpose. 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 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

Lt. Terrence McDonnell Page 2 March 22, 2017 redaction or segregation or fee in excess of $25 per hour; 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. Current petition Mr. Freskos requested records related to firearms from January 1, 2010 to present. In the Department's initial March 14, 2017 petition you indicate this request was broken down into three parts: (1) detailed information on stolen guns; (2) detailed information about seized and/or guns, guns in evidence, and/or guns of which the department has taken custody; and (3) detailed information on lost, stolen, or unaccounted for law enforcement guns. The Department is seeking to charge a total fee of $528.90 for the production of responsive records. Fee estimate A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § lO(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 or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § lO(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, § lO(d)(iv). See G. L. c. 66, § IO(d)(iii); 950 CMR 32.06(4). The Department's fee estimate of $528.90 is comprised often hours of time at an hourly rate of $52.89 per hour. In a supplemental letter dated March 20, 2017 the Department indicates "each entry will need to be searched and then segregated to determine what portions are subject to withholding" under the Public Records Law. In particular, you explain "the requested records will need to be segregated for the purpose of withholding incident numbers and home addresses in accordance with G.L. c. 66, section 1O B" as it operates through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). 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 segregation or redaction. See G. L. c. 66, § lO(d)(iv).

Lt. Terrence McDonnell Page 3 March 22, 201 7 With respect to the hourly rate of $52.89, you explain this is the hourly rate of a Detective Evidence Intake Officer. In the Department's March 20th letter, you explain the Detective Intake Officer is the lowest paid employee granted access to the Evidence Records Management System. The hourly rate for the employee is $30.49, but the Department indicates the requested hourly rate of $52.89 is an overtime rate because the request "requires efforts beyond this employee's normal workload." It should be noted that responding to public records requests is part of the day-to-day function and duties of a government entity. Therefore, I decline to approve the Department's petition to assess a fee in excess of $25 .00 an hour. Further, the Department does not provide further explanation for the ten hours for which it is seeking to charge. See G. L. c. 66, § lO(d)(iv) (requiring the amount of the fee must be reasonable). Considerations The Supervisor is required to consider the public interest served by limiting the cost of public access to the records. While the public benefits by minimal fees, if any, for the provision of public records, the Public Records Law allows for municipalities to recoup certain costs associated with responding to public records requests. G. L. c. 66, § lO(d). Given the nature of this request, the public interest is not limited by the assessing of search and segregation fees. Additionally, the Supervisor must consider the financial ability of the requestor to pay the additional or increased fees and any other relevant extenuating circumstances. This office has not received any documentation relative to the financial inability of the requestor to pay. Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its letters dated March 14th and March 2ot\ the Department is permitted to charge for time spent segregating and redacting the requested records. However, the Department has failed to demonstrate the need to charge for ten hours of time at a rate of $52.89 per hour. See G. L. c. 66, § lO(d)(iv) (requiring the amount of the fee must be reasonable). When preparing a fee estimate for the provision of the requested records, the Department must reduce the amount of time charged for reviewing these records, or provide more detail explaining why this amount of time is necessary to produce responsive records. The Department must also assess an hourly rate in a manner consistent with the Public Records Law, its Regulations, and this determination. Mr. Freskos may appeal the Department's fee estimate within ninety (90) days. See 950 C.M.R. 32.08(1). Please note the requester 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, § 1 OA.

Lt. Terrence McDonnell Page 4 March 22, 2017 Sincerely, Rebecca S. Murray Supervisor of Records cc: Brian Freskos