Marc Larocque v. Brockton, City of - Personnel Department (SPR 20180489)

The Cornrnonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 26,2018 SPR181489 Maureen Cruise City of Brockton - Personnel Department 45 School Street Brockton, MA 02301 Dear Ms. Cruise: I have received the petition of Marc Larocque of the Brockton Enterprise appealing the response of the City of Brockton Personnel Department (City) to a request for public records. G. L. c. 66, tj 10A; see also 950 C.M.R. 32.08(1). Specifically, on March 20,2018, Mr. Larocque requested the following records: - The certificates, by department, that must be filed annually stating an employee's name and place of residence, as mandated by city ordinance, 'Residency requirement of employment and promotions' . . . for the years 20 17 and 201 6. - Any notice of a failure of an employee to file a certificate indicating residency within the city of Brockton, as mandated by city ordinance 'Residency requirement of employment and promotions' . . . for the years 20 17 and 201 6. - Any exemptions or extensions to the residency ordinance granted by the city or any other such correspondence related to the ordinance. On March 22,20 18, the City responded to Mr. Larocque's request, providing a fee estimate. The City subsequently provided a revised fee estimate on April 6,2018 . Mr. Larocque petitioned this office, appealing the City's revised fee estimate. This appeal, SPR181489, was opened as a result. Fee estimates 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, tj lO(d). The fees must Id. reflect the actual cost of complying with a particular request. 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, tj 10(d)(i). One Ashburton Place, Room 1719 , Boston, Massachusetts 021 08 (617) 727-2832. Fax: (61 7) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Maureen Cruise Page 2 April 26,201 8 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, 5 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 Id. per hour. 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, 5 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, 5 lO(d)(iv). G. L. c. 66, 5 lO(d)(iii); 950 CMR 32.06(4). TIze City's fee estimates On March 22,201 8, the City provided a response to Mr. Larocque that included a fee estimate for the cost of segregating and redacting records. The City estimated that because "approximately 40% of the approximately 700 current city employees are subject to the residency requirement," it would take 5.5 hours to search, segregate, and redact responsive records. Fees to search for, compile, segregate, redact or reproduce a record request The Regulations provide that in cases where necessary to reproduce the requested records a records access officer may charge a fee to search for, compile, segregate, redact or reproduce a record requested based on the hourly rate of the lowest paid employee who is capable of performing the task. G. L. c. 66, 5 10(d); see also 950 C.M.R. 32.07(2). Additionally, Id. the reasonable fee for reproduction shall not exceed the actual cost of reproducing the record. A municipality may not charge for segregation and redaction unless required by law or a petition has been filed and approved by the Supervisor of Records. G. L. c. 66, 5 10(d); see also 950 C.M.R. 32.06(4). The City indicated that the Residency Statements include employees' home addresses. As such, it has to redact such information from the records pursuant to Exemption (0) of the Public Records Law, which permits the redaction of such information. Employee time The Regulations provide that a municipality with a population of 20,000 or fewer may assess a fee for the first two hours of work performed. 950 C.M.R. 37,07(2)(m)(2). Population data shall be determined by the decennial U.S. Census and it is the burden of the municipal RAO to provide such information in its response. 950 C.M.R. 37.07(2)(m)(2)(i-ii).

Maureen Cruise Page 3 April 26,2018 The City indicated that although the lowest paid employee with the necessary skill required to search for, compile, segregate, redact or reproduce the requested record's pay exceeds $25.00, it capped the amount at $25.00 per hour. Consequently, the City estimated a fee of $1 15.50 for 3.5 hours including $0.05 per page for producing an approximated 506 pages worth of responsive records totaled $28.00. Subsequently, the City provided a revised fee estimate reflecting the actual cost of producing the records on April 6,2018 . In the April 6the stimate, the City assessed a fee of $170.10 based on 6 hours (8 hours minus first 2 hours) of search, segregation, and redaction of responsive records and also $20.10 for 402 pages of responsive records. Based on the City's March 22ndf ee estimate and April 6thr evised fee estimate, I find that the City has not explained with specificity why the estimated amount of time was required to produce responsive records. Specifically, it is unclear why the City required an extra 2.5 hours to search, segregate, and redact records for responsiveness. Additionally, although the City provided a total amount of time for producing responsive records, it is uncertain how many hours were allocated to search, segregate, and redact the records. The City must clarify this matter. For the reasons discussed above, I find the City must revise its fee estimate or provide further explanation of how the fee assessed in its April 6the stimate is expressly provided for and consistent with G. L. c. 66, 5 10(d). I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, the City is hereby ordered to provide Mr. Larocque 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 this response to this office at pre@- ,sec.state.ma.us. Sincerely, Rebecca S. Murray C/" Supervisor of Records cc: Marc Larocque