Taeho Kim v. Framingham, City of - City Clerk (SPR 20201063)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 8, 2020 SPR20/1063 Todd C. Palmer Super Records Access Officer City of Framingham 150 Concord Street Framingham, MA 01702 Dear Mr. Palmer: I have received your petition on behalf of the City of Framingham (City) requesting an extension of time to produce records and a waiver of statutory limits on fees that may be assessed in responding to the requests. 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 22, 2020, Taeho Kim requested the following police records within the possession of the City: • All use of force incident level data from 2008-2019 which includes date, subject race, officer race, type of force used, whether there was subject injury, and whether there was officer injury; • All incident-level civilian complaints reported from 2008-2019 which includes date, race, officer race, and reason for calls; • All incident-level police-related 911 calls made to the police department in 2008- 2019, which includes date and reason for calls. 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; 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

Mr. Todd C. Palmer SPR20/1063 Page 2 July 8, 2020 (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 (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).

Mr. Todd C. Palmer SPR20/1063 Page 3 July 8, 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 requester to pay the additional or increased fees; and c) any other relevant extenuating circumstances. Id. Current Petition The City explains in its July 1, 2020 petition it is seeking a “time extension from ten (10) days to the maximum allowable by law.” In regards to the 911 calls, the City posits, “a representative from the Framingham Police Department ran the numbers of calls made to the police in the specified timeframe…there are 11,623 calls.” Additionally, in its petition, the City is seeking permission to charge a fee increase in excess of $25 per hour. Specifically, the City seeks to charge Lt. Riley’s hourly rate of $47.17 per hour for “Internal affairs information as it can only be accessed by Lt. Riley.” Within the timeframe of 2016 – present according to the City, “there are (98) cases that he will need to pull. At a low estimate, he will need at least (22) hours to compile the data…to go back a full (11) years, it will be a much greater time frame and very difficult to assemble a time estimate.” Conclusion I find 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 30 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, I find the City has not met its burden to explain how the request cannot be prudently completed without assessing a fee for segregation and redaction. 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, Taeho Kim 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). Sincerely, Rebecca S. Murray Supervisor of Records cc: Taeho Kim