Chapin Scaggs v. Boston, City of - Law Department (SPR 20201281)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 7, 2020 SPR20/1280 Shawn Williams, Esq. Director of Public Records Records Access Officer City of Boston One City Hall Square 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. Specifically, on July 16, 2020, Chapin Scaggs requested 20 categories of records: “1. Documents sufficient to show the number of School Police Officers serving at Boston Public Schools, by year, for 2018, 2019, and 2020. 2. Documents sufficient to show the number of incidents or other requests School Police Officers have responded to while serving at Boston Public Schools, by year, for 2018, 2019, and 2020. 3. Documents sufficient to show the number of incidents or other requests that Boston Police Officers have responded to from Boston Public Schools, by year, for 2018, 2019, and 2020. 4. The training received by School Police Officers to serve at Boston Public Schools. 5. The training received by Boston Police Officers for responding to incidents or other requests from Boston Public Schools. 6. Policies or guidelines for School Police Officers at Boston Public Schools, including but not limited to policies or guidelines governing: (i) how School Police Officers may interact with students; (ii) use of force by School Police Officers; or (iii) searches of students, students’ property, or school property by School Police Officers. 7. Policies or guidelines for Boston Police Officers who respond to incidents or other requests from Boston Public Schools, including but not limited to policies or guidelines governing: (i) how Boston Police Officers may interact with students; (ii) use of force by 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 SPR20/1280 Page 2 August 7, 2020 Boston Police Officers; or (iii) searches of students, students’ property, or school property by Boston Police Officers. 8. The budget for the Boston School Safety Service. 9. The budget for School Police Officers at Boston Public Schools. 10. The budget for Boston Police Officers who respond to incidents or other requests from Boston Public Schools. 11. Compensation received by any School Police Officers, as well as all money spent on training and equipment for School Police Officers. 12. Compensation received by any Boston Police Officers who respond to incidents or other requests from Boston Public Schools, as well as all money spent on training and equipment for those Boston Police Officers. 13. Documents sufficient to show the number of incidents or other requests from Boston Public Schools during which School Police Officers employed force on a student. 14. Documents sufficient to show the number of incidents or other requests from Boston Public Schools during which Boston Police Officers employed force on a student. 15. Documents sufficient to show the number of searches of students, students’ property, or school property conducted by School Police Officers at Boston Public Schools. 16. Documents sufficient to show the number of searches of students, students’ property, or school property conducted by Boston Police Officers at Boston Public Schools. 17. Reports prepared by or on behalf of the Boston Police Department, Boston School Committee or the Mayor’s Office regarding the performance of the School Police Officers at the schools. 18. Reports prepared by or on behalf of the Boston Police Department, Boston School Committee or the Mayor’s Office regarding the performance of Boston Police Officers responding to incidents or other requests from Boston Public Schools. 19. All memoranda of understanding (or similar agreements) entered into between the Boston Public Schools and the Boston Police Department or the Suffolk County District Attorney’s Office. 20. All memoranda of understanding (or similar agreements) entered into between the Boston School Safety Service and the Boston Police Department or the Suffolk County District Attorney’s Office.” 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;

Shawn A. Williams SPR20/1280 Page 3 August 7, 2020 (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). In its July 30, 2020, petition, the City requests “the Supervisor of Records to permit the City additional time needed to comply with your request….” The City indicates “[i]t is likely that the City will need at least fifteen (15) additional business days to review, redact and provide records responsive to this request.” The City states that “[p]ortions of records responsive to your request may contain information that is exempt from disclosure.” The City explains “[i]t is particularly difficult at this time as many City departments are operating under reduced hours and most City employees are working remotely. This will make it difficult to obtain and review copies of records that may not be readily available to remote workers.” I find that in light of the need to search for the records, and the capacity of the City to produce the request without the extension, the City has established good cause to permit an extension of time. G. L.c. 66, § 10(c)(i)-(ii). I hereby grant the City an extension of 15 business days beyond the time allowed in G. L. c. 66, § 10(b)(vi) (a municipality may provide a timeframe not to exceed 25 business days to produce responsive records). To the extent possible, the City must provide responsive records on a rolling basis. Petitions to Assess Fees The Supervisor of Records (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. G. L. c. 66, § 10(d)(iv).

Shawn A. Williams SPR20/1280 Page 4 August 7, 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 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 agency to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public 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 the request is not for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the agency 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). In its July 30th petition, the City requests “the Supervisor to permit the City to assess a fee for the provision of records responsive to your request.” The City explains “[i]t is likely that any responsive records contain student record information as well as information associated with investigatory matters. Such investigatory matters may include ongoing investigations, and may

Shawn A. Williams SPR20/1280 Page 5 August 7, 2020 also include statements from voluntary witnesses. Any responsive records may also include medical information regarding specifically identified persons or other information the disclosure of which would be an unwarranted invasion of privacy. G. L. c. 4, § 7 (26) (a), (c), (f); G. L. c. 71, § 34D.” Although the City states that the responsive records may contain student record information, investigatory information regarding ongoing investigations, and medical information, it has not provided information regarding what records it intends to produce and why such records are likely to contain exempt information. Accordingly, I find the City 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 City from charging for segregation and redaction that is required by law. Conclusion Accordingly, I find the City has established good cause for a time extension of 15 business days as described above. However, the City’s petition to assess a fee for segregation and redaction cannot be granted at this time. Please note, Mr. Scaggs 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: Chapin Scaggs