Samuel Sinyangwe v. Quincy, City of - Police Department (SPR 20201214)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 27, 2020 SPR20/1214 Lieutenant Terence McDonnell Records Access Officer Quincy Police Department 1 Sea Street Quincy, MA 02169 Dear Lieutenant McDonnell: I have received your petition on behalf of the City of Quincy Police Department (Department) requesting permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor. Id. In a letter dated July 6, 2020, Mr. Sinyangwe requested: 1. The total number of use of force incidents, separated by year and by type of force used from 2016-2019 (for example, 27 taser incidents in 2016, 3 baton incidents in 2017, etc.) 2. The total number of civilian complaints alleging any form of law enforcement misconduct that were reported and the total number sustained, separated by year (for example, 8 complaints in 2016, 2 complaints sustained in 2017,4 complaints in 2018,1 complaint sustained in 2019, etc.) 3. The total number of civilian complaints alleging law enforcement use of excessive force that were reported and the total number sustained from 2016-2019, separated by year 4. The total number of civilian complaints alleging biased policing or racial profiling that were reported and the total number sustained from 2016-2019, separated by year Petitions 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 public interest served by limiting the cost of public access to the records; b) the financial ability 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

Lieutenant McDonnell SPR20/1214 Page 2 July 27, 2020 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).

Lieutenant McDonnell SPR20/1214 Page 3 July 27, 2020 Current Petition In its July 20th petition, the Department seeks permission to charge for segregation and redaction time at an hourly rate of $54.98 per hour. The Department indicates, “[t]he information sought in [the] request is contained in the Personnel and Internal Affairs records of each sworn member of our Department (both past and present). Given the sensitive nature of these files, Department policy dictates that the lowest ranking (least costly) person with access to such records is the Sergeant assigned to Internal Affairs. The hourly rate for the person currently holding this position is $54.98. This represents the ‘lowest hourly rate of a person capable of compiling, segregating, redacting and reproducing a requested record.’” The Department explains, “prior to calendar year 2018, records relative to use of force incidents (Part 1) and citizen complaints (Parts 2, 3 & 4) were not digitally recorded and exist in paper-based file form only. These records are arranged by the name of the Officer involved and not by chronological order. Therefore, to provide responsive records for 2016-2017, each Officer’s Personnel and Internal Affairs file will first need to be examined in order to locate timely records. The information requested, if evident, will then need to be extracted from those files. In the case of use of force incidents, each incident recorded in the Officer’s Personnel file may need to be cross referenced with corresponding incident reports to identify the type of force used.” The Department asserts “[g]iven that the Department maintains both Personnel and Internal Affairs files for approximately 230 individuals, providing information relative to [the] request for calendar years 2016 and 2017 will be a time and labor intensive endeavor.” Conclusion I find the Department has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Please note, however, this does not preclude the Department from charging for segregation and redaction that is required by law. Further, is unclear how the request could not be prudently completed without a fee in excess of $25 per hour. Specifically it is uncertain why this task cannot be completed by a lower paid employee. When preparing a fee estimate for the provision of the requested records, the Department is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Department must provide a response to Mr. Sinyangwe within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4).

Lieutenant McDonnell SPR20/1214 Page 4 July 27, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Samuel Sinyangwe