Brooks A. Ames v. Brookline, Town of - Police Department (SPR 20181412)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 4, 2018 SPRlS/1412 Neil Harrington Traffic/Records Division Supervisor Town of Brookline Police Department 350 Washington Street Brookline, MA 02445 Dear Mr. Harrington: I have received the petition of Brooks Ames, Esq. of the Brookline Justice League appealing the response of the Town of Brookline Police Department (Department) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1 ). Specifically, Attorney Ames requested a copy of "the internal affairs and/or office of professional responsibility file concerning the July 7, 2016 contact with an officer of the [Department] that gave rise to the $15 7, 000 settlement." On August 21, 2018, the Department provided Mr. Ames with a fee estimate for a minimum of 10 hours at $41.69 per hour totaling $410.69. On August 2?1\ Attorney Ames provided the Department with a $410.69 check for the records. On September 2ot\ Attorney Ames petitioned the Supervisor, seeking an order for production of the records and a refund of the excessive fee charged. Prior fee petition -SPR18/1348 The responsive records were the subject of a prior petition from the Department requesting permission of the Supervisor of Records (Supervisor) to charge more than $25 an hour for the provision of public records. G. L. c. 66, § lO(d)(iv). In my September 12, 2018 determination of the Department's fee petition, I found that the Department had submitted its petition more than 10 business days after receipt of the request. Therefore, permission to assess fees of more than $25.00 could not be granted. See 950 C.M.R. 32.06(4)(g). Fee estimates On October 1, 2018, the Department provided Attorney Ames with the responsive records. The Department also provided Attorney Ames with the total cost of producing 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

Neil Harrington SPRlS/1412 Page2 October 4, 2018 records. The Department's October 1st letter to accompany the records states the costs as, "[t]he actual cost of production is $550.00. This amount is based upon 22 billable hours at $25.00 per hour." A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. The Department did not detail the tasks that the Department performed for the 22 hours of time it assessed. A fee estimate must detail each of the tasks, such as search time, segregation, redaction, or compiling. A maximum fee of five cents ($.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). It is unclear whether the Department assessed any fees for copies of records. Municipalities may not assess a fee for the first 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). It is uncertain whether the Department has waived the first two (2) hours of employee time from the 22 hours it assessed, as required by G. L. C. 66, § 10(d )(iii). 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, § lO(d)(iii); 950 CMR 32.06(4). Petitions relating to fees, such as for segregation and/or redaction ofrecords, must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). It is not apparent from the estimate whether the Department assessed fees for segregation and redaction, and if so, whether the segregation and redaction was required by law. Order Accordingly, the Department must revise its estimate in a manner consistent with this order, the Public Records Law and its Regulations and provide it to Attorney Ames within 10 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 Supervisor of Records cc: Brooks Ames, Esq.