Abigail Hadfield v. Brookline Police Department (SPR 20191457)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 22, 2019 SPR19/1457 Amanda Williams Records Clerk Brookline Police Department 350 Washington Street Brookline, MA 02445 Dear Ms. Williams: 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 Abigail Hadfield of the NBCJO Boston. G. L. c. 66, § lO(d)(iv). As required by law, the Department furnished a copy of their petition to the requestor. Id. On July 16, 2019, Ms. Hadfield requested information concerning "e-scooters" as of April 1, 2019. 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, § lO(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, § IO(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, § 10( d)(iv). It 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

Amanda Williams SPRl 9/1457 Page 2 July 22, 2019 segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10( d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § lO(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, § lO(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 22, 2019 petition to this office, the Depaiiment 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 2211 d petition fmiher 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." I find the Depaiiment 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, § lO(d)(iv). In light of the factors in G. L. c. 66, §

Amanda Williams SPR19/1457 Page 3 July 22, 2019 lO(d)(iv), I find the Depa1iment may assess a fee of $30.38 per hour for the production of responsive records. It should be noted that that Ms. Hadfield's request was not limited to digital files, and therefore the Depaiiment shall only charge for time spent producing and redacting the digital files; the Department shall not charge at the aforementioned rate for any other responsive records. Conclusion 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 in the manner described above. The Department must provide a response and/or the records in compliance with this determination, the Public Records Law, and its Access Regulations. When preparing a fee estimate for the provision of the requested records the Department is advised to provide a detailed explanation to the requestor detailing why this amount of time is necessary. See G. L. c. 66, § lO(d)(iv) (requiring the amount of the fee must be reasonable). The Department must also provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. The Department must provide a response to Ms. Hadfield within five business days ofreceipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Hadfield may appeal the Department's fee estimate within ninety days. See 950 C.M.R. 32.08(1). 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), lOA(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Abigail Hadfield