Matthew Rocheleau v. Milton, Town of - Police Department (SPR 20201156)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 24, 2020 SPR20/1156 Margaret Walsh Records Administrator Town of Milton Police Department 40 Highland Street Milton, MA 02186-3873 Dear Ms. Walsh: I have received the petition of Matthew Rocheleau of The Boston Globe appealing the response of the Town of Milton Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Mr. Rocheleau made two (2) separate public records requests on June 19, 2020 and June 22, 2020. Specifically: June 19, 2020 request (Milton’s Request #P000638-061920): 1. Any materials that outline internal policies, procedures, protocols, standards, guidelines, general orders, directives, rules and regulations for the police department, including, but not limited to, any/all use of force policies, employee policies and procedures set by [the] [H]uman [R]esources [D]epartments, and training manuals and materials; 2. The most current version of all collective bargaining unit/union contracts with the [Department]; 3. Any/all logs/lists of internal investigation cases of [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; 4. Any/all documentation describing the operation of all existing [D]epartment early- warning/intervention program(s); 5. The most current version of any/all organization charts, rosters, and any/all employee directories for the [D]epartment, including any/all employee contact information and badge numbers. The most current version of any documents that show the demographics 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

Margaret Walsh SPR20/1156 Page 2 July 24, 2020 (racial, ethnic, gender, and age) of each of the [D]epartment’s employees; 6. Any and all records that show the total of the number of overtime hours worked [D]epartment-wide in each of the shift/assignment names/codes/classifications the [D]epartment uses in its payroll system for calendar year 2019; 7. A list/master list showing the names of all of the internal forms and publications of the [Department] that are intended to be for and/or filled-out by sworn law enforcement employees of the [D]epartment, excluding any forms/publications used broadly for all [Town] employees and any forms/publications only used for[H]uman [R]esources purposes (such as tax withholding forms or worker's comp forms). It there is no list available, a copy of each blank form and the cover/title page of each publication will suffice; 8. The [Department’s] three most recent annual reports; and 9. The most-detailed versions of line-item budgets for the [Department] for the three most- recent 12-month periods available (i.e. budgets on either a fiscal year or calendar year basis; however, the records are normally recorded). June 22, 2020 request (Milton’s Request #P000642-062220): 1. Any/all reports final reports issued since Jan. 1, 2010 regarding a department employee's use of lethal/deadly force. This would include final investigative findings as well as any recommendations for discipline or action to be taken by the department or employee; 2. Any/all reviews, memos, or audits issued by the [P]rofessional [S]tandards [D]ivision/[B]ureau and/or the Chief/Commissioner’s Office regarding the use of force by [D]epartment employees since Jan. 1, 2010; 3. Any/all administrative logs/lists of all instances of use of force by [D]epartment employees since Jan. 1, 2010; 4. Any/all data/summary reports about field interrogation and observation/encounter (aka “stop and frisk/search”) events since Jan. 1, 2017; 5. A list of any/all promotions and demotions of employees at [the Department] since Jan. 1, 2017, showing the name of the employee promoted/demoted, the effective date of that change, and the change in job title; 6. A list of all people hired as [Department] employees since Jan. 1, 2017, showing their names, titles, and the date their employment began;

Margaret Walsh SPR20/1156 Page 3 July 24, 2020 7. A list of all police department employees who departed/left the agency since Jan. 1, 2017, showing their names, titles, date they left/departed, whether they retired/resigned, were terminated/fired, or left on some other terms, and, if they were terminated/fired, the reason; 8. A list of all [Department] employees who were suspended/placed on involuntary leave since Jan. 1, 2017, showing their names, titles, date suspension began and ended (if it has), and reason for suspension; and 9. Any/all documents related to payments made for legal settlements and judgments involving the [Department], or employees from Jan. 1, 2017 through present date. This includes, but is not limited, to settlements/agreements/arbitration made both in and out of court. With regard to both requests, Mr. Rocheleau states, “[w]e believe the documents that we are requesting are for the most part readily-available and items that could be emailed (or sent some other way electronically) to us fairly easily, with minimal, if any, review and redaction required…We’re certainly open to talking through this, considering any suggestions you have to modify language, and being flexible regarding deadlines, etc.” Mr. Rocheleau has also requested that these records be sent in electronic form (such as PDF or Word or Excel file), if possible. The Department’s June 30, 2020 response/estimate In a June 30th response, the Department provided a fee estimate to Mr. Rocheleau’s June 19th and June 22nd requests. The Department’s June 30th estimate provided one fee estimate for both the requests totaling $919.50. However, as a result of the Department’s combined estimate, Mr. Rocheleau petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his July 10, 2020 petition, Mr. Rocheleau asserts that he filed two separate requests which seek entirely different and distinct sets of Department records. He asserts that the Department should have provided him with two separate fee estimates for the June 19th and June 22nd requests. Mr. Rocheleau states, “…the [D]epartment’s fee estimate lacks any specifics about how it came up with the various time and fee estimates it lists for the requested records and whether the time the [D]epartment is estimating to charge for is even allowed to be charged as fees under the [P]ublic [R]ecords [L]aw.” Waiver of fees Mr. Rocheleau asks the Supervisor to order the Department to turn over all the responsive records immediately without fees because of the strong public interest. While a record custodian may waive applicable fees, the Supervisor has no authority to require that a record custodian do so.

Margaret Walsh SPR20/1156 Page 4 July 24, 2020 Fee estimates - municipalities 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) 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. However, municipalities may charge more than $25 per how if such rate is approved by the Supervisor 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 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 Department’s June 30, 2020 estimate The Department’s June 30th estimate breaks down as: Total search and segregation time = 9 hours, 40 minutes 2 free hours = 7 hours, 40 minutes $25 per hour=$ 191.50 Copying costs –waived. In his petition to this office, Mr. Rocheleau objects to the Department providing one estimate by combining his requests. Mr. Rocheleau asserts, “[f]or one, these were two separate requests and by combining the two, the [D]epartment’s estimate fails to account for how the first two hours of work (for which applicable fees may be charged under the [P]ublic [R]ecords [L]aw should be processed for free for each request. If the [D]epartment wants to combine both requests and issue a single response, the Globe does not object to that, other than the [D]epartment should provide a total of the first four hours without charging fees.” A review by this office reveals that the requests were made on separate dates and seek different types or categories of records. The Department has not demonstrated that it is justified in the combining of these requests. It is unclear how the Department arrived at the estimated time for each of the tasks. The Department must clarify how much time is estimated for searching, compiling, segregating and redacting.

Margaret Walsh SPR20/1156 Page 5 July 24, 2020 Further, it is uncertain why the Department is assessing a fee for segregation. 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 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). I find that the Department must clarify why it assessed a fee for segregation of records, and whether the Department is doing so to review the records for any exempt material that must be redacted as required by law. No duty to create records In its response, the Department indicates that it does not have records responsive to Mr. Rocheleau’s June 19th request for “any/all documentation describing the operation of all existing [D]epartment early-warning/intervention program(s).” The Department also indicates that it does not have certain of the records as were requested on June 22nd, such as, logs/lists of instances of “use of force,” and data/summary reports about field interrogation and observation/encounter regarding “stop and frisk.” The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). There is no obligation to create a record in response to a public records request. 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Finally, Mr. Rocheleau suggests the possibility that some of the requested records are ones that are readily-available and provided for free or posted online in other police departments and agencies. He asks whether the Department has any of the requested records posted online or that can be easily retrieved electronically. I encourage the parties to communicate and work together to resolve the outstanding issues involved with Mr. Rocheleau’s records requests, including any modification and/or narrowing of the requests if it will reduce the costs in providing records. Conclusion Accordingly, the Department is ordered to provide Mr. Rocheleau with a revised fee estimate, in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau