Nathaniel Brown v. Milton, Town of - Police Department (SPR 20181876)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 10, 2018 SPRlS/1876 Margaret Walsh Records Administrator Milton Police Department 40 Highland Street Milton MA 02186 Dear Ms. Walsh: I have received your petition on behalf of the Town of Milton Police Department (Department) seeking a waiver of statutory limits on fees that may be assessed in responding to a request. G. L. c. 66, § lO(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § lO(d)(iv). In a request received by the Department on November 26, 2018, Nathaniel Brown requested 2 categories of records related to a case file of an identified victim. Petitions for ability to assess fees Municipalities may not assess a fee for the first 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. 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

Margaret Walsh SPR18/1876 Page 2 December 10, 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, § 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. Current petition In the Department's petition you indicate "I am requesting a petition to charge to redact personal information ( exemption E) based on the nature of the incident" and you note these records relate to a criminal homicide. The Department provided a fee estimate to Mr. Brown on December 3, 2018 that indicates "I am expecting it will take 18 hours to complete this request. This is estimate is based on the scope of this request. There are 18 people listed on the incident and the incident is 19 pages long and there are several photographs to review and audio that I need to listen too. I will then need to have my supervisor review the documents to make sure that all the information I am providing is accurate." The Department's estimated total of $402.50 is based on 16 hours to "review, compile and redact," which includes the first 2 hours of work for free, as well as producing copies of approximately 50 pages. In an email dated December 10, 2018 you indicate" ... after looking at the exemptions more closely exemption F is more appropriate." You also informed a Public Records Division attorney that the Department seeks to redact witness identities under this exemption. 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 and/or segregation. See G. L. c. 66, § lO(d)(iv). However, it is unclear why the Department requires 18 hours to produce the records; in particular, it is unclear how many hours will be spent searching versus segregating and/or redacting. See G. L. c. 66, § 10( d)(iv) (requiring the amount of the fee must be reasonable). Conclusion For the reasons described above, the Department may charge for the time spent segregating and/or redacting for the provision of the requested records. However, the Department must provide Mr. Brown supplemental information regarding why it needs 18 hours to produce records. Mr. Brown may appeal the substantive nature of the Department's response 90 days. See 950 C.M.R. 32.08(1). This office encourages Mr. Brown and the Department to communicate further to facilitate providing records efficiently and affordably. See G. L. c 66, § 1O (b )(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably).

Margaret Walsh SPR18/1876 Page 3 December 10, 2018 Please note, Mr. Brown 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), IOA(c). Sincerely, ~ a y ~ Supervisor of Records cc: Nathaniel Brown