Jeanne L. Holmes-Kireilis v. Brockton, City of (SPR 20190960)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 30, 2019 SPR19/960 Aileen C. Bartlett, Esq. Assistant City Solicitor City of Brockton 45 School Street Brockton, MA 02301 Dear Attorney Bartlett: I have received the petition of Jeanne L. Holmes appealing the response of the City of Brockton (City) to a request for public records. G. L. c. 66, § lOA; 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 14th, 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 of time assessed, Ms. Holmes petitioned the Supervisor of Records (Supervisor), and the initial .. appeal,SPR19/5.8J, wasopened. Prior appeals The requested records were the subject of prior appeals. See SPRI9/583 and SPRI9/796 Determinations of the Supervisor of Records (Supervisor) (Afril 2, 2019 and May 2, 2019). In my April 211 d determination, I found that the City's March 14t1 response and estimate did not indicate whether any of the requested records arc freely available for Ms. Holmes to inspect, and whether the City has assessed the lowest paid rate of the employee capable of conducting each task. 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). I ordered the City to provide Ms. Holmes with a supplemental response to address these issues. 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. SPR19/960 Page2 May 30, 2019 The City's April 17, 2019 supplemental response ih In its April 1 supplemental response, the City indicates that the responsive records are held by the Ci~y' ~ Poli~e D~partment, the Tr~ffic Commission, and the Department of Public Works. The City s Apnl 17 response explams: "[a]s stated in our prior correspondence, the City has already begun compiling the responsive records and determined that it would take a total of 5.5 hours to compile across these three city departments. None of these documents are freely available for inspection; compilation has required employees from each of these departments, including several [City] police officers, to pull files, search for records, generate reports, and copy and/or scan the documents to produced. I have been advised that the hourly rate for the lowest paid employee who has the necessary skill required to compile the responsive records in any of the departments is $27.68." The City was asked to clarify whether maximum hourly rate of $25.00, allowed by the Public Recntds Law, is the lowest paid rate of the employee capable of conducting the tasks necessary. "rhe City indicates that $27.68 is the lowest paid hourly rate of the employee ih capable; therefore, it revised its estimate to $25.00 per hour. Its April 1 response also states that the City reduced the amount of time necess~u-y to complete the tasks of searching, compiling, copying and/or scanning the responsive records from 5.5 hours to 3.5 hours total, crediting Ms. Holmes with 2 urs of free time. See G. L. c. § 10(d )(iii). The total estimated cost to Ms. Holmes is $87.SJ to provide copies of her Request Numbers 1, 2, 3, 4, 6, 8, 9, 10 and 11. The City's response also informed Wfa. :Iolmes: "[p] lease Je advised that this fee does net include time spent redacting the records, as no redactions will be required. Further, as ,ated previously, the City will transmit the documen',:; electronically as requested to avoid the cost of paper copies. To be clear, the City docs not intend on charging for any additional tasks needed to fulfill your request." No responsive records The Cit/:: April 1J 1h supplemental rc::p:1nse informed Ms. Holmes that it has no records responsive to he,· itemized Request Numbers 5 l'.nd 7. Please note, there is no obligation for a records custodi . Lo create a record in respon::" ,o a public records request. 32 Op. Att'y Gen. 157, 165 (May l ,), 1977). The duty to comply ,,ith requests for information extends only to · those records tl. • •. exist are in the custody o .:· the custodian of records at the time of the request. See G. c. 4, § 7(26). In Ms. I 'mes April 1 i 11 email to this office requesting a second appeal regarding the requested record·; and the $87.50 estimate, Ms. Holmes writes, "[a]s I stated inmy first appeal, the Mayor as w 'as John Hallisey of the [C:1~11s] Police Department made public statements in which they prO\ · 'cd information about the rL' : 1;er of vehicles that they dealt with over the snow

Aileen C. Bartl· , Esq. SPR19/960 Page 3 May 30, 2019 emergencies in 1 c: [City]. Clearly, if they were able to provide the numbers, they already have the factual data support those represcntatic:1,;. Therefore, there is no reason to charge me for any of those do, 11ents are readily avail . or should be based on the public statements." i 11 The Cit· · April 1 supplemental . ase invites Ms. Holmes to discuss with the City potential ways t t the requests could be mocj:.cd. Again, I encouraged the parties to communicate a1 work together to satisfy Ms. : olmes' requests. In my 1V' :,r 2nd determination, I found the City should review Ms. Holmes' April 17th suggestions for · ·)dific:'ien of her requests, communicate with Ms. Holmes regarding what 0 records it actua 1 that may rc:;;y: · ::i veto her modifications. The City was ordered to provide a fur rcspl ·:::c to assis·' I'. '.:Sin clarifying her requests and modifications to her original Ma 1 2019 requests, and whetLcr .. ie modifications could reduce the overall costs. Ms. Holmes' , 13, L ·· response On May 3t11, M,;. Eolmes sent an email ":o the City in which she indicates she would be 2: ·· interested in rec 1ing native reconls : .er original request. For example, in her original request, Ms. He cs nic· : a request for: "[a]ll lo. ::-or en: ·J call received .ig the Winter Parking Ban and all Brockton Emerge; .r Parking Bans, including c'.ate of the call, the party making the call, the person\ o took tl call, the time the l was received by the police, the response the police rr; le and the time that the police : esponded to each and every call during the time frame re· renced above [September 1, 18-March 4, 2019]." However, in he lay 13th ,:mail, Ms. ;erts, "I am more than happy to receive the entire logs and ill go t] ough them Further, her Gri • nal request,J'vfa. 1es requested procedures for selecting officers for each day of ; Winte1 ?arking Ban and . ach day of all Emergency Parking Bans. ! ·• However, in he !a' y 13th · t1 1a · i 1 , I1. o 1m e".", iuests that the City "print the Collective Bargaining Agr ,nent so , can read through · ,yself." A Publi :ecords Liv ision staff attorw ' telephoned and emailed Ms. Holmes to clarify 0 her May 13th e: : ; howe. :r, was t.nable b, · icct with Ms. Holmes directly. Conclusion Given t it is Ul1( ·car whether Ms. Ies intended to modify or make new requests in her May 13th ei i, witho '. further cla·ifica·. .. ·rom Ms. Holmes this office is unable to analyze the current fee c mate of .S87.50. Consequc1 .. ·, I will consider this appeal closed.

Aileen C. Bart> , Esq. SPR19/960 Page 4 May 30, 2019 Ms. Holmes m, petition this office for a nc .;)eal by providing this office the necessary clarification of' requests. G Sincerely, Rebecca S. Murray Supervisor of Records cc: Jeanne L. E mes