Jeanne L. Holmes-Kireilis v. Brockton, City of (SPR 20190583)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 2, 2019 SPR19/583 Aileen C. Bartlett Assistant City Solicitor City of Brockton 45 School Street Brockton, MA 02301 Dear Attorney Bartlett: I have received the petition of Jeanne Holmes appealing the response of the City of Brockton (City) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1 ). On March 2, 2019, Ms. Holmes requested certain records "pertaining to Brockton emergency parking bans and all winter parking bans from September 1, 2018 through March 2, 2019." On March 3, 2019, Ms. Holmes modified her request to extend the time period from September 1, 2018 through March 4, 2019. On March 14, 2019, the City provided Ms. Holmes with fee estimate for 3.5 hours of search and compilation of the responsive records at $25 per hour, totaling $87.50. The City informed Ms. Holmes that it can provide the records electronically via email where possible, or provide the records on a compact disc to avoid the charges for paper copies. As a result of the amount oftime assessed, Ms. Holmes petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Fees If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). 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

Aileen C. Bartlett, Esq. SPR19/583 . Page 2 April 2, 2019 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, § I 0(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 under a petition under G. L. c. 66, § IO(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 under a petition under G. L. c. 66, § IO(d)(iv). See G. L. c. 66, § IO(d)(iii); see also 950 C.M.R. 32.06(4). The City's fee estimate The City provided Ms. Holmes with a fee estimate for 3.5 hours of time to search for and compile records at $25.00 per hour for a total of $87.50. The estimate indicated that the City has reduced the 5.5 hours by 2 hours. See G. L. c. 66, § IO(d)(iii). The City does not explain whether the hourly rate for search and compilation of the records is the lowest paid hourly rate of the employee capable of performing those tasks. The $25.00 per hour rate is the maximum allowed by the Public Records Law. Id. The City must explain whether the $25.00 hourly rate is the lowest paid rate of the employee capable of conducting each task. In its estimate the City states, "[p] lease note that this is a good faith calculation of the actual time spent by the City to prepare this response. Please be advised that the actual cost of producing the records may vary once the City completes preparation of the records." It is unclear what the City means by "calculation of the actual time spent" and "actual cost of producing the records." It is unclear whether the City intends to charge for any additional tasks, or how it calculated the number of hours in the estimate Ms. Holmes received for 3.5 hours oftime to search for and compile records. In her March 19th petition, Ms. Holmes asserts, "I have reason to believe that many of my requested items are readily available given that the Mayor reported to the Brockton Enterprise with the number of vehicles towed and number of vehicles ticket[ ed] for the most recent snow emergency. In addition, Capt. John Hallisey of the [City's] Police Department is in charge of the now emergency matters and he provided data to the Brockton City Council on March 18, 2019." 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, § I 0(d ). The City's March 14th response and estimate does not indicate whether any of the requested records are freely available for Ms. Holmes to inspect. Furthermore, the City did not identify whether it is in possession, custody or control of all the requested records or categories ofrequested records. G. L. c. 66, § IO(b )(ii), (iii). Nor did the

Aileen C. Bartlett, Esq. SPR19/583 Page 3 April 2, 2019 City identify any records, categories or portions of records that it intends to withhold with specificity under exemption(s) in the Public Records Law. See G. L. c. 66, § lO(b)(iv). The City is advised; however, fees for segregation and redaction of the responsive records may not be charged unless segregation is required by law or the records custodian has submitted a petition to the Supervisor under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § (d)(iii); see also 950 C.M.R. 32.06(4). The City may suggest a reasonable modification of the scope of the request or offer to assist Ms. Holmes to modify the scope of the request if doing so would enable the City to produce records sought more efficiently and affordably. I encourage the parties to communicate and work together to satisfy Ms. Holmes' request. I find that the City has not met its burden in responding to the request, and must provide Ms. Holmes with a supplemental response to the request that complies with G. L. c. 66, § 1O (b) and 10( d). It is my understanding that a Public Records Division staff attorney contacted you pertaining to this appeal. Conclusion Accordingly, the City is ordered to provide Ms. Holmes with a response to the request in a manner consistent with this order, the Public Records Law and its Regulations 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: Jeanne Holmes