Brooks A. Ames v. Brookline, Town of - Police Department (SPR 20192156)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 23, 2019 SPR19/2156 Neil HaITington Brookline Police Department 350 Washington Street Brookline, MA 02445 Dear Mr. Harrington: I have received your petition on behalf of the Town of Brookline Police Department (Depaiiment) requesting permission to charge for time spent segregating or redacting responsive records under G. L. 66, § lO(d)(iv) as well as to charge an hourly rate over $25. As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § lO(c). On October 11, 2019 the Depa1iment received a request for records from Brooks A. Ames for the following records: 1) all internal investigation files concerning complaints made by or against Amy Hall 2) the outside hearing officer's report concerning Amy Hall's disciplinary appeal 3) the minutes of the select board meeting at which the outside hearing officer's report was presented, including minutes reflecting the votes of the members of the Select Board 4) Hall's MCAD complaint and any addendums as well as the Town's opposition(s). Petition to Assess Fees 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, § 10 (d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). 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, § lO(d)(iv). One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Mr. Neil Harrington SPR19/2156 Page 2 October 23, 2019 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. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § lO(d)(iv). It is my determination that this request was not made 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 segregation; 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. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). 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 petition dated October 2211d, the Department states that the office that houses these files is "highly restricted, and the Detective Lieutenant in the Office of Professional Responsibility is the lowest ranked person with access to these files." In the October 22, 2019 communication, the Department explains the 1'files are confidential and maintained separately

Mr. Neil Harrington SPR19/2156 Page 3 October 23, 2019 from other files within [the] department. Given the sensitive nature of some of these files, department policy specifically requires that these files be maintained in a secure environment, separate from other records." Further, the Department asserts that "[t]he lowest paid employee with access to these confidential records who can perform the task required for this public records request is the IAD [Internal Affairs Division] Officer of the department." Additionally, the Depaiiment asserts that "[a]s no other employee is able to fill this request we are petitioning to be allowed to increase the hourly fee from the $25 to $46.45." Accordingly, the Department is requesting that it be allowed to charge fees in excess of the $25 per hour statutory maximum rate to respond to this request. Conclusion For the reasons described above, I will allow the Department to assess a fee for the time spent segregating responsive records. Further, the Department may charge for the time spent to compile and segregate responsive records in excess of $25 per hour for the provision of the requested records. However, this allowance is limited to the rate of $46.45 per hour. Please note, Attorney Ames has the right to seek judicial review of this decision by c. commencing a civil action in the appropriate superior comi. See G. L. 66, § 10( d)(iv)( 4), lOA(c). Sincerely, ~ u r ~ Supervisor of Records cc: Brooks A. Ames, Esq.