Nicholas Gemelli v. Brookline, Town of - Police Department (SPR 20191334)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S, Murray Supen•lsor of Records July 11, 2019 SPR19/1334 Neil Harrington 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) seeking to charge in excess of $25 per hour in responding to a request made by Nicholas Gemelli of the Beasley Media Group. G. L. c. 66, § lO(d)(iv). As required by law, the Department furnished a copy of their petition to the requestor. Id. On June 29, 2019, Mr. Gemelli requested information concerning nine identified incidents recorded by the Department. Petitions to assess fees The Supervisor of Records (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 agency to comply with the request. 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. G. L. c. 66, § 10(d )(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality's petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § lO(d)(iv). lt is my determination that the request is not for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or 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 SPR19/1334 Page 2 July 11, 2019 segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § lO(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). 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. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(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 of Records under a petition under G. L. c. 66, § JO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06( 4)(g). Current Petition In its July 3, 2019 petition to this office, the Department states it will need four hours to produce the records but you note that the first two hours will be waived. The Department notes, "[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 the only employees that would have the software and ability to redact the files as well." The July 3rd petition further expresses "[t]he 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. To allow an employee of lower rank/pay access would violate our own deparment 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 $25 to $30.38, which is the hourly rate of the lowest ranking IT Officer."

Neil Harrington SPRl9/1334 Page 3 Julyll,2019 Based on a conversation between the Department and a member of the Public Records Division staff, it is my understanding the records are comprised of audio files and contain identifying information regarding victims and witnesses, as well as medical information. 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 assessing a fee in excess of$25.00 per hour. See G. L. c. 66, § IO(d)(iv). In light of the factors in G. L. c. 66, § IO(d)(iv), I find the Department may assess a fee of$30.38 per hour for the production of responsive records. Co11c/11sio11 For the reasons described above, I will allow the Department to charge fees in excess of $25 per hour for the provision of the requested records. However, this allowance is limited to the rate of $30.38 per hour. The Department must provide a response and/or 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), IOA(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Nicholas Gemelli