MuckRock News v. Quincy, City of - Police Department (SPR 20201019)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 10, 2020 SPR20/1019 Lt. Terence McDonnell Records Access Officer Quincy Police Department 1 Sea Street Quincy, MA 02169 Dear Lt. McDonnell: I have received your petition on behalf of the Quincy Police Department (Department) requesting permission for a waiver of statutory limits on fees that may be assessed in responding to a request. G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). On April 30, 2020, MuckRock News requested “information relating to internal affairs complaints against Quincy Police Department officers between January 1, 2010-April 30, 2020 including but not limited to… [nine identified categories].” Previous Appeal This request was the subject of a previous appeal. See SPR20/0839 Determination of the Supervisor of Records (June 5, 2020). In my June 5th determination, I found the Department intended on providing a subsequent response to MuckRock News to address the concerns raised in the appeal. The Department was ordered to provide MuckRock News with a response to its request in a manner consistent with the Public Records Law and its Access Regulations as soon as is practicable. The Department on June 25, 2020 sent a response to MuckRock News which included a petition to assess a fee. On June 26, 2020, MuckRock News responded to the Department’s petition appealing the fee estimate. 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). 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

Lt. Terence McDonnell SPR20/1019 Page 2 July 10, 2020 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, § 10(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) 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, § 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, § 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, § 10(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, § 10(d)(iv). See G. L. c. 66, § 10(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).

Lt. Terence McDonnell SPR20/1019 Page 3 July 10, 2020 It is unclear whether the Department has submitted a timely fee petition. In light of the fact the Department has not demonstrated it submitted a timely petition, permission to charge $54.98 as an hourly rate, as well as to charge for time spent segregating or redacting responsive records, cannot be granted. 950 C.M.R. 32.06(4)(g). Conclusion In light of the above, the Department’s petition for a waiver of statutory limits on fees cannot be granted at this time. Sincerely, Rebecca S. Murray Supervisor of Records cc: MuckRock News