Jessica Lewis v. Boston, City of - Police Department (SPR 20200104)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S, Murray Supervisor of Records January 27, 2020 SPR.20/0104 Shawn A Williams, Esq. Director of Public Records Records Access Officer City of Boston 1 City Hall Plaza, Room 615 Boston, MA 02201 Dear Attorney Williams: · I have received your petition on behalf of the Boston Police Department (Department) requesting an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § lO(c); G. L. c. 66, § lO(d)(iv). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § lO(c). On January 2, 2020, Jessica Lewis, on behalf of the American Civil Liberties Union of Massachusetts (ACLUM), requested four categories ofrecords, including "[a]ll reports for FIOs conducted between January 2017 and the time of production ... ;" "[a]ll 'Crime Incident Rep01is' from June 2019 ... "; "[a]rrest data from January 1, 2019 to the time of production;" and "[c]ommunications, including emails, created between December 2016 and present related to or referencing the publication of FIOE or FIO data." Subsequent to the opening of this petition, the A CLUM submitted a letter to this office on Jeynuary 24, 2020 that addresses various portions of the Department's petition. Petitions for an extension of time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; 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

Shawn A. Williams, Esq. SPR20/0104 Page 2 January 27, 2020 (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; · (iv) effo1is undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § lO(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). In light of my understanding that the requestor agrees to a 30 day extension, it is unnecessary to opine on the Department's petition for an extension of time at this time. 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). 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, § 10(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)

Shawn A. Williams, Esq. SPR20/0104 Page 3 January 27, 2020 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, § 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, § lO(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). In its January 16th petition, the Depaiiment requests "the Supervisor of Records to permit the Boston Police Depa1iment to provide a fee estimate for such costs." The Department indicates "[t]he records will be reviewed by a Boston Police Depa1iment staff member possessing sufficient knowledge of the records and the law as to make proper decisions as to the withholding redaction of information ... [i]t is likely any such persons are paid an hourly rate in excess of $25.00 per hour." The Department explains "each record must be reviewed in order to determine the portions that are exempt from disclosure under the privacy, investigatory or statutory exemptions to the public records law. The records are likely to contain information voluntarily provided by witness or informants. This privacy interest may outweigh the public interest in disclosure particularly if the records are not publicly available elsewhere, Such information may also be exempt under the investigatory exemption to the public records law."

Shawn A. Williams, Esq. SPR20/0104 Page 4 January 27, 2020 In light of the above, I find the Department has met its burden to explain how the request cannot not be prudently completed without redaction or segregation. Consequently, to the extent the Department provided a response in compliance with G. L. c. 66, § 1O (b ), the Department may assess fees for the segregation and redaction of the requested records. G. L. c. 66, § IO(e). · Conclusion Accordingly, I find it unnecessary to opine on the Department's petition for an extension of time at this time. Further, the Department has met its burden to explain how the response could not be prudently completed without redaction or segregation. If the Depaiiment can show that they met the requirements under G. L. c. 66, § lO(b), they may assess a fee for segregation and redaction to the extent the responsive records contain the exempt information as described above. Please note, ACLUM 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, § I0(d)(iv)(4), IOA(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Jessica Lewis, Esq.