Beth Healy v. Boston, City of - Law Department (SPR 20201058)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 8, 2020 SPR20/1058 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 record and a waiver of statutory limits on fees that may be assessed in responding to the request. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the City furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On June 16, 2020, Ms. Beth Healy requested “any and all complaints, commendations, use-of-force reports, and disciplinary actions on or related to Captain John Danilecki of the Boston Police Department, including if available, his start date and his assignments.” 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 twenty (20) business days and a single extension to a municipality not to exceed thirty (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 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 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. SPR20/1058 Page 2 July 8, 2020 (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(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 (10) business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(b). Petition for Ability to Charge Fees Municipalities may not assess a fee for the first two (2) 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. 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). The Supervisor may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request, the fee is necessary such that the request could not have prudently completed without the redaction, segregation or fee in excess of $25 per hour, and the amount of the fee is reasonable and the fee is not designed to limit, deter or prevent access to requested public records. G. L. c. 66, § 10(d)(iv). 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 requester to pay the additional or increased fees; and c) any other relevant extenuating circumstances. Id.

Shawn A. Williams, Esq. SPR20/1058 Page 3 July 8, 2020 Current Petition The City, in its June 30, 2020 petition, is seeking “additional time to process [Ms. Healy’s] request and to provide an estimate of fees associated with [Ms. Healy’s] request.” In its June 30, 2020 petition, the City claims, “the need to search, review, and segregate” responsive records as “a review of a police officer file may result in redaction of medical information and other intimate details regarding persons other than that officer.” With respect to the responsive records, they “may contain information regarding voluntary witnesses…and may contain information regarding reports of sexual assault or domestic violence that are exempt from disclosure by statue. G. L. c. 4, § 7(26)(a), (c), (f); G. L. c. 41, 97D.” The City notes “[g]overnment records custodians are permitted to redact or withhold portions of public records, so long as a specific exemption to the law is cited. See G. L. c. 4, § 7(26). Portions of records responsive to your [Ms. Healy’s] request may contain information that is exempt from disclosure. Until a review of the records is conducted, it is not clear what if any exemptions may apply to permit or require redaction or withholding.” Conclusion I find that in light of the capacity of the City to produce the records without the extension; and the need to search for, segregate, and redact the requested records, the City has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(ii). I hereby grant the City an extension of fifteen (15) business days beyond the time allowed in G. L. c. 66, § 10(b)(iv) (a municipality may provide a timeframe not to exceed 25 business days to produce responsive records). The City is advised it must provide the records in a manner consistent with the Public Records Law and its Access Regulations. To the extent possible, the City must provide responsive records on a rolling basis. With respect to the City’s petition to assess fees in conjunction with the response provided, it is unclear whether a timely fee petition was filed. Accordingly, I am unable to opine on the City’s petition to charge fees at this time. See G. L. c. 66, § 10(d)(iv); 950 C.M.R. 32.06(4)(g). Please note, Ms. Healy 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), 10A(c).

Shawn A. Williams, Esq. SPR20/1058 Page 4 July 8, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Ms. Beth Healy