Brooks A. Ames v. Brookline, Town of - Police Department (SPR 20181529)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 24, 2018 SPRlS/1529 Neil Harrington Traffic/Records Division Supervisor Brookline Police Department 350 Washington Street Brookline, MA 02445 Dear Mr. Harrington: I have received your petition on behalf of the Brookline Police Department (Department) requesting permission to charge more than $25 an hour for the provision of public records. G. L. c. 66, § 10(d )(iv). The Department is advised that as required by law, a custodian must furnish a copy of this petition to the requestor. G. L. c. 66, § lO(c). On October 4, 2018, Attorney Brooks Ames requested "the internal affairs and/or office of professional responsibility file concerning" a specified settlement. Petitions for ability to assess fees 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, § 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. 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 (Supervisor) under a petition under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). The 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, the fee is necessary such that the request could not have been prudently completed without the redaction, segregation or fee in 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/1529 Page2 October 24, 2018 excess of $25 per hour, and the amount of the fee is reasonable and the fee is not designed to limit, deter or prevent access to requested public records. 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. The Department's Petition In its October 1J 1h petition, the Department requests to be "allowed to increase the hourly fee from the $25 to $41.069, which is the hourly rate ofIAD Officer." The Department indicates the amount represents "[t]he lowest paid employee with access to these confidential records who can perform the task required for this public records request." The Department explains "[t]he files that are requested are internal affairs files, which contain a mix of public and private information." The Department further explains "[g]iven the sensitive nature of some of these files, department policy specifically requires that these files be maintained in a secure environment, separate from other records. These records are maintained in a locked filing cabinet, which is maintained in a separate locked office ... Detective Lieutenant in the Office of Professional Responsibility is the lowest ranked person with access to these files." The Department in addition states "the Brookline Police Department is an accredited police department. Pursuant to the Massachusetts Police Accreditation Commission standards (standard 52.1.2), it is mandatory that internal affairs files be maintained in a secure area and that the confidentiality of these files be protected. During the process of becoming accredited, a physical inspection is conducted to verify that these internal affairs files are in fact being maintained in a secure and confidential manner with restricted access." The Department indicates it will "require 4 hours for segregation and redaction" and "will not charge a fee for the first 2 hours." 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 redaction, segregation or by assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § lO(d)(iv). Conclusion As discussed above, I will allow the Department to charge for segregation fees in excess of $25 per hour for the provision of the requested records. However, this approval is limited to the rate of $41.69 per hour and only for segregation and redaction costs. The Department must provide the records in compliance with this determination, the Public Records Law, and its Access Regulations. Please note, the requestor 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, § 10(d)(iv)(4),

Neil Harrington SPR18/1529 Page 3 October 24, 2018 lOA(c). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Brooks Ames