Jeanne Holmes-Kireilis v. Brockton, City of - Police Department (SPR 20201453)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 2, 2020 SPR20/1453 Sgt. Kenneth Lofstrom Brockton Police Department 7 Commercial Street Brockton, MA 02302 Dear Sgt. Lofstrom: I have received the petition of Jeanne L. Holmes-Kireilis appealing the response of the Brockton Police Department (Department) to her request for public records. G. L. c. 66, §10A; see also 950 C.M.R. 32.08(1). Specifically on July 23, 2020, Ms. Holmes-Kireilis requested the records for the time period from 12:00 a.m. on July 18, 2020, through July 20, 2020 at 12:00 p.m. as follows: “1) All memos, directives, policies, and any other communications, either written, electronic or oral, regarding phone calls, whether 911, any police-related phone or to the business phone, made to the Brockton Police …. 2) The names and titles of all Brockton Police officers, dispatchers, and their designees scheduled to work and actually worked, including shift worked … 3) All logs for every call received, whether 911, any other police-related phone or to business phone number, including the date of the call, the party making the call, the person who took the call, the time the call was received by the police, the response the police made and the time that the police responded to each and every call … 4) The number of calls, whether 911, any other police-related phone that [the Department] did not respond to, the date for each call that was not responded to, the time frame that the call was received by the [Department], the location of the violation that was not responded to and the name of the officer or department representative who made the determination to not respond to the call for each and every call …” Unsatisfied with the response, Ms. Homes-Kireilis appealed and SPR20/1453 was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public 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

Sgt. Kenneth Lofstrom SPR20/1453 Page 2 September 2, 2020 Records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding is based…”); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. V. Flatley, 419 Mass. 507, 511 (1995) (custodian has ----------------------------------- the burden of establishing the applicability of an exemption). The Department’s August 4th response Request 1 With response to the above referenced request #1, the Department states, “The Department has no memos, directives, policies and any other communications, either written, electronic or oral regarding phone calls, whether 911, any police-related phone, or to the business phone, made to the Brockton Police during the time frame referenced above.” Request 2 With response to the above referenced request #2, the Department states responsive information could be withheld “[p]er exemption B of Public Records (withheld only to the extent that proper performance of necessary governmental functions requires such withholding).” Request 3 & 4 With response to the above referenced requests #3 and #4, the Department states records “[w]ill be provided … per [the] request.” 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,

Sgt. Kenneth Lofstrom SPR20/1453 Page 3 September 2, 2020 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). Current Petition In its August 4, 2020 petition, the Department states, “…our intent is to provide … the records … requested [and] the files will be on paper and not available in electronic format. The estimated time needed and costs to the City of Brockton are as follows: 20 pages of documents researched, reviewed, redacted, and copied = $ 40 2 hours to complete at $ 25.00 per hour = $ [5]0 Total Cost = $ 60.” The Department's fee estimate has not explained why the indicated amount of time is necessary for producing the requested records. The Department's fee estimate lacks confirmation that the rates for search and segregation is of the lowest paid employee who is capable of performing the task(s). Further, the Department has not provided sufficient explanation to explain why 2 hours of search time is necessary to comply with the records request and is in conformity with G. L. c. 66, §10(d). Specifically, the Department must clarify what tasks are necessary to provide the records. Additionally, if the Department is assessing time for the segregation and redaction of records, the Department must provide information about whether the responsive records contain information that that is required by law to be segregated or redacted, as well as the applicable statutes, if any. Further the Department must clarify the charge for copying records which is 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. See G. L. c. 66, § 10(d)(i). For the reasons discussed above, I find the Department must revise its fee estimate. Conclusion Accordingly, the Department is ordered to provide Ms. Holmes-Kireilis with a revised fee estimate, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. 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.

Sgt. Kenneth Lofstrom SPR20/1453 Page 4 September 2, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Jeanne L. Holmes-Kireilis