Brendan Noonan v. Boston, City of - Police Department (SPR 20200264)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pervisor ofR ecords February 19, 2020 SPR20/0264 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 City of Boston (City) 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 City furnished a copy of this petition to the requestor. G. L. c. 66, § lO(c). On February 6, 2020, Brendan Noonan requested four categories ofrecords pertaining to named officer's "Internal Affairs" files. 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; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the cunent 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. 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. SPR20/0264 Page 2 February 19, 2020 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). Extension oft ime to produce responsive records In its February 10, 2020, petition, the City requests "the Supervisor of Records to permit the City additional time to process your request..." The City indicates "[s]ome internal affairs files number well over 1,000 pages. A review must be conducted to locate the records responsive to your request and determine the number of pages of each. It is likely portions of the records must be redacted as well." The City explains "[i]t is likely exempt material may include, for example, voluntary witness identifying information, medical information, domestic violence or sexual assault information. G. L. c. 4, § 7 (26) (a), (c), (t); G. L. c. 41, § 97D (26)." I find that in light of the need to collect and segregate the request, as well as the potential scope of redaction required to prevent unlawful disclosure, the City has established good cause to permit an extension of time. G. L. c. 66, § lO(c)(i)-(ii). I hereby grant the City an extension of 20 business days beyond the time allowed in G. L. c. 66, § lO(b)(vi) (a municipality may provide a timeframe not to exceed 25 business days to produce responsive records). Please note the time may begin to run once the City receives payment. G. L. c. 66, § lO(c). 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, § 10( 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).

Shawn A. Williams, Esq. SPR20/0264 Page 3 February 19, 2020 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). In its February 11th petition, the City requests "the Supervisor of Records to permit the City ... to provide an estimate of fees associated with both requests." The Department indicates "[p ]ortions of records responsive to your request may contain information that is exempt from disclosure ... it is likely exempt material may include, for example, voluntary witness identifying

Shawn A. Williams, Esq. SPR20/0264 Page4 February 19, 2020 information, medical information, domestic violence or sexual assault information. G. L. c. 4, § 7 (26) (a), (c), (f); G. L. c. 41, § 97D (26)." In light of the above, I find the City has met its burden to explain how the request cannot not be prudently completed without redaction or segregation. Conclusion Accordingly, I find the City has established good cause for a time extension of 20 business days as described above. Further, in light of the City's petition, I find the City has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the City may assess a fee for segregation and redaction. When preparing a fee estimate for the provision of the requested records, the City is advised to provide a detailed explanation to the requestor indicating why this estimated amount of time is necessary. See G. L. c. 66, § lO(d)(iv) (requiring the amount of the fee must be reasonable). Please note, the Supervisor does not possess the authority to permit the City to charge for the first two hours of employee time. The City must also provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. The City must provide a response to Attorney Noonan within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Attorney Noonan may appeal the City's fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Atorney Noonan 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: Brendan Noonan, Esq.