Andrew Quemere v. Brookline, Town of - Police Department (SPR 20191499)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pen•isor ofRecords August 7, 2019 SPR19/1499 Amanda Williams Records Clerk Town of Brookline Police Depmiment Public Safety Building 350 Washington Street Brookline, MA 02445 Dear Ms. Williams: I have received the petition of Andrew Quemere appealing the response of the Town of Brookline Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Quemere requested electronic copies of "[a]ll current policies, memos/bulletins, fact sheets, and other informational materials (e.g., PowerPoint presentations, instructional videos, etc.) related to the drugs [F]entanyl and [ C] arfentanil." On July 26, 2019, the Department provided a fee estimate for "Miscellaneous Charges of $50.00; 4 hours of time for completion@ $25.00 hour First two hours no charge." As a result, Mr. Quemere petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his petition to the Supervisor, Mr. Quemere states, "[t]he [D]epmiment's response does not identify the records it intends to produce, the records it intends to withhold, or any records which are not in its possession, as required by the Public Records Law." Mr. Quemere further asserts, "the [D]epartment has not indicated why it must spend four hours on my request, so it not clear if any of the work done by the [D]epartment can lawfully be subject to fees; its' invoice only describes the work it is charging me for as "Miscellaneous." Fee estimate 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 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 9/1499 Page 2 August 7, 2019 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). Municipalities may not assess a fee for the first 2 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has a population of 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 under a petition under G. L. c. 66, § lO(d)(iv). Tile Department's responses In its July 26, 2019 estimate, the Department indicates that 4 hours of time at $25.00 per hour is necessary to comply with the request, and that the Department is waiving the first 2 · hours. See G. L. c. 66, § lO(d)(iii). The Department's total estimate is $50.00, which it labeled as "Miscellaneous charges." However, the Department did not explain why 2 hours of time is necessary, and what tasks will be conducted to comply with Mr. Quemere's request. Neither has the Depaiiment explained whether the $25.00 per hour rate is the lowest paid employee capable of completing the tasks necessary. Furthermore, the Department did not identify whether it is in possession, custody or control of all the requested records or categories of requested records. G. L. c. 66, § 1O (b )(ii), (iii). Nor did the 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). 1st, On August the Department provided another response explaining that the Depaiiment's Comrµunity Services' Office believes that it is in possession of training bulletins related to Fentanyl and Carfentanil; as well as, training videos viewed by the Depaiiment's officers. To clarify the 2 hours of time assessed, you indicate that Department is charging for search, segregation and reproduction of the records. The Department 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). To the best of my knowledge, the Depaiiment has not filed a petition to charge fees for segregation and/or redaction. Therefore, I find that unless the segregation and/or redaction is required by law, the Department may not assess a fee for segregation and/or redaction.

Amanda Williams SPR19/1499 Page 3 August 7, 2019 Conclusion Accordingly, the Depaiiment is ordered to provide Mr. Quemere with a revised estimate, 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: Andrew Quemere