Nicholas Gemelli v. Brookline, Town of - Police Department (SPR 20191196)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 21, 2019 SPR19/1196 Amanda Williams Records Clerk Brookline Police Department 350 Washington Street Brookline, MA 02445 Dear Amanda Williams: I have received your petition on behalf of the Brookline Police Department (Department) seeking to charge for time spent segregating and redacting public records. 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 letter received by the Department on June 14, 2019, Nicholas Gemelli requested the audio of various 911 calls to the Department. Petitions regarding 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, § 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 CMR 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 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). 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

Amanda Williams SPR19/1196 Page 2 June 21, 2019 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 an email to this office dated June 14, 2019 the Department states, "[t]he files that are requested are maintained on the Department's secured server. Access to these digital audio files are only accessible by the Department's IT Officers, as they are also the only employees that would have the software and ability to copy and redact the files as well. The lowest paid employee with access to these records who can perform the task required for this public records request is the IT Officer of the Department." The Department further explains, "[t]o allow an employee of lower rank/pay access would violate our own department policy on confidentiality and security, and also jeopardize our status as an accredited police department. As no other employee is able to fill this request we are petitioning to be allowed to increase the hourly fee from the $25 to $30.38, which is the hourly rate of the lowest ranking IT Officer." Conclusion For the reasons described above, the Department may assess an hourly rate at $30.38 per hour. Further, this office encourages Mr. Gemelli and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § lO(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). Any fee estimate by the Department must be in compliance with this determination, the Public Records Law, and its Access Regulations. Please be aware, 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, § 1O A. Sincerely, ~~ Supervisor of Records cc: Nicholas Gemelli