Matthew Rocheleau v. Boston, City of - Law Department (SPR 20201102)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 10, 2020 SPR20/1102 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, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, the City furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). Specifically, on June 19, 2020, Matthew Rocheleau of the Boston Globe, requested the following records. • A list/master list showing the names of all of the internal forms and publications of the police department that are intended to be for and/or filled out by sworn law enforcement employees of the department, excluding any forms/publications used broadly for all city employees and any forms/publications only used for human resources purposes (such as tax withholding forms or worker’s comp forms). If there is no list available, a copy of each blank form and the cover/title page of each publication will suffice. • The police department’s three most recent annual reports. • The most current version of any/all organizations charts, rosters, and any/all employee directories for the department, including any/all employee contact information and badge numbers. • Any/all logs/lists of internal investigation cases of police department employees from Jan. 1, 2010 through present, including but not limited to pending cases. Please include the current disposition of each case, as well as any final disciplinary action linked to complaint. • Any/all documentation describing the operation of department early-warning/intervention programs(s) • Any/all form 26’s filed during 2019. 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. SPR20/1102 Page 2 July 10, 2020 • Any/all after-action reports about the protests and police response in Boston on Sunday May 31, 2020, as well as the aftermath, through 3 a.m. the morning of Monday, June 1, 2020 • Any/all internal/external complaints filed, received, or reported to the department from May 30, 2020 through present, including but not limited to civilian complaints, whistleblower complaints, and discrimination complaints. 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 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 business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). 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

Shawn A. Williams, Esq. SPR20/1102 Page 3 July 10, 2020 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).

Shawn A. Williams, Esq. SPR20/1102 Page 4 July 10, 2020 Current Petition In its letter to Mr. Rocheleau dated June 19, 2020 the City states, "[t]his letter petitions the Supervisor of Records to permit the City additional time to process your request and to provide an estimate of fees associated with your request.” In support of the request for additional time the City explains “[r]esponsive records are likely to contain attorney-client privileged communications. These records will be withheld entirely pursuant to the common law attorney client privilege.” Based on the information provided in the petition, it is unclear whether the City can provide responsive records within twenty-five business days of the receipt of the request as allowed in G. L. c. 66, § 10(b)(vi). Also, the City has not explained how many responsive records exist nor described the scope of any potential redaction. G. L. c. 66, § 10(c)(i)-(ii). Accordingly, I find the City has not demonstrated good cause for an extension of time. The City submitted their petition on July 6, 2020, more than ten business days after receipt of the request on June 19, 2020. In light of the fact the City has not demonstrated it submitted a timely fee petition, permission to charge for time spent segregating or redacting responsive records cannot be granted at this time. 950 C.M.R. 32.06(4)(g). Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau