Sharmarke Abdulla v. Worcester, City of - Office of the City Manager (SPR 20170469)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 7, 2017 SPR17/469 John F. Hill City of Worcester Communications Specialist Worcester, MA 01608-1172 Dear Mr. Hill: I have received your petition on behalf of the Worcester Police Department (Department) to charge for time spent segregating or redacting public records in responding to requests made by Sharmarke Abdulla for records related to a specific incident and associated internal affairs investigation. G. L. c. 66, § lO(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, § 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. 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

John F. Hill Page 2 April 7, 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. Abdulla requested records related to a specific incident and associated internal affairs investigation, including names of Department officers, "internal auditors," interviews of officers involved in the incident, "internal audit documents," and "a copy of the internal auditor's final report." The Department is seeking to charge a total fee of $528.90 for the production of responsive records. Fee estimate A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § lO(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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, § 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, § 1O (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 CMR 32.06(4 ). The Department's fee estimate of $2,572.88 is comprised of 58 hours of time at an hourly rate of $44.36 per hour. You explain the Department has determined it possesses approximately 233 pages ofresponsive records and "internal affairs documents and emails not only contained detailed information pertaining to the internal affairs investigation, but will also likely include email communications between internal affairs staff and command staff regarding the internal affairs complaint which may contain information requiring redaction." The Department is advised that internal affairs records are generally public. In particular, the courts have contrasted the public status of disciplinary investigation materials of law enforcement personnel from the "ordinary evaluations, performance assessments, and disciplinary determinations" included in the public records exemption for "personnel [file] or .., information" for other public employees due to the significance of maintaining the transparency

John F. Hill Page 3 April 7, 2017 of the police department's internal affairs process. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 2 (2003). The Appeals Court reasoned that openness in a police internal affair investigatory process, facilitated by the release of the relevant documents, was necessary to foster the public trust in law enforcement. Id. at 7-8. While it is the finding of this office that internal investigation records may not be withheld as personnel records, this does not preclude a governmental entity from applying other exemptions from the Public Records Law to redact or withhold portions that ought to be so withheld. Id. at 9, n.8 (indicating that "concerns as to confidentiality and promotion of candor are protected not by the 'personnel [file] or information' exemption, but by the privacy and investigatory exemptions)." Therefore, 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, § IO(d)(iv). With respect to the amount of time needed to complete the request, you indicate "[d]ue to the complex nature of internal affairs investigations, the City estimates that each page will require approximately 15 minutes to read, review, [a nd] assess each document for sensitive information requiring redaction, complete redaction, and document the reason citing applicable exemptions and/or statuses for each redaction. .. " However, I find the Department has not met its burden to justify why 15 minutes per page, totaling 58 hours, is necessary to produce these records. See G. L. c. 66, § lO(d)(iv) (requiring the amount of the fee must be reasonable). With respect to the hourly rate of $44.36, you explain this is the hourly rate of a Worcester Police Sergeant. In its April 3rd petition the Department indicates "[a] civilian employee of the Worcester Police Department does not have access to nor are they capable of reviewing and redacting these sensitive internal affairs documents." However, it is unclear why a lower-paid employee does not have access to the records, nor capable of performing segregation and redaction. Therefore, I decline to approve the Department's petition to assess a fee in excess of $25.00 an hour. 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, § 10(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.

John F. Hill Page 4 April 7, 2017 Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its April 3rd petition, the Department is permitted to charge for time spent segregating and redacting the requested records. However, the Department has not demonstrated the need to charge for 58 hours of time at a rate of $44.36 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. Abdulla 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, § lOA. Sincerely, ~~ Rebecca S. Murray - Supervisor of Records cc: Sharmarke Abdulla