Andrew Quemere v. Berkshire County Sheriff's Office (SPR 20201734)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 30, 2020 SPR20/1734 Daniel Sheridan, Esq. Berkshire County Sheriff’s Office 467 Cheshire Road Pittsfield, MA 01201 Dear Attorney Sheridan: I have received the petition of Andrew Quemere appealing the response of the Berkshire County Sheriff’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on September 3, 2020, Mr. Quemere requested the following records: [1] The police department’s current use-of-force policies [2] A blank copy of each form used to report use-of-force incidents (if the form is part of a computer program and is not easily exportable, it is acceptable to provide screenshots) [3] All division-wide and department-wide use-of-force reports/audits for the years 2010 to the present (by division-wide and department-wide, I mean reports/audits that examine use of force by an entire division or the entire department, not reports/audits about a specific use-of-force incident) [4] All data on the number of use-of-force incidents for the years 2010 to the present [5] All data on the total number of use-of-force incidents involving each department employee[.] The Office responded on September 17, 2020, which included responsive records. The Office also provided a fee estimate. Objecting to the fee estimate, Mr. Quemere petitioned this office and this appeal, SPR20/1734, was opened as a result. Fee estimate – 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 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

Daniel Sheridan, Esq. SPR20/1734 Page 2 September 30, 2020 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 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). The Office’s September 17th response and fee estimate In its September 17, 2020 response, the Office provided records responsive to items 1- 3. With respect to items 4 and 5, the Office provided the following estimates: Item 4 The Office responded “[a]n annual statistical summary of use of force incidents from 2015 through 2020 to date. Going back from 2009‐2014, would require going through each use of force report for those 6 years and compiling those statistics. It is estimated that that process would require an additional 30 hours at $25 per hour (30 x $25=$750).” Item 5 The Office states that it “. . . maintain[s] use of force reports by incident, not by officer. Going through every use of force incident for the past 12 years and creating a spreadsheet to show which officers were involved in which use of force incidents would require us to search incident by incident over 2 different databases as our offender management software system has changed during this period. A reasonable, good faith estimate of the time involved to prepare a list of every officer and the number of use of force incidents that officer was involved over a twelve year period would entail at least 50 hours at $25/hr. (50 x $25 = $1250)[.]” In its response, the Office indicates that it requires a total of 80 hours to produce records responsive to items 4 and 5. However, it is unclear why the Office requires 30 hours and 50 hours to produce records responsive to these items, respectively. The Office must provide additional information explaining why the estimated amount of time is required and the tasks involved in the process.

Daniel Sheridan, Esq. SPR20/1734 Page 3 September 30, 2020 Also, although the Office indicates that it requires 30 hours to go through each use of force report over a 6 year period, and 50 hours to search each incident over a 12 year period, it is unclear the number of reports and/or incidents the Office intends to review to produce responsive records. It is additionally uncertain how many minutes the Office requires to review each report and/or incident in order to compile the responsive records. The Office must clarify these issues. Further, the Office’s September 17th estimate assessed 80 hours at $25.00 per hour to provide the records responsive to items 4 and 5. Based on this response, it is unclear whether $25.00 is the lowest paid hourly rate for the employee capable of completing the tasks necessary to produce the records. See G. L. c. 66, § 10(d)(iii). This office encourages Mr. Quemere and the Office to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Mr. Quemere may wish to narrow his request to include a shorter time period or specific incidents. G. L. c. 66, § 10(a)(i). Consequently, I find the Office must revise its fee estimate, or provide a further explanation of how the fee assessed in its September 17th response is expressly provided for and consistent with G. L. c. 66, § 10(d). Searchable text In his appeal petition, Mr. Quemere states “. . . the data the office has provided is in an unsearchable PDF with the pages turned sideways. It is not clear why the office did not provide the data in a more accessible, functional format such as an Excel spreadsheet.” Please note that pursuant to the Public Records Law, “[t]he records access officer shall, to the extent feasible, provide the public record in the requestor’s preferred format or, in the absence of a preferred format, in a searchable, machine readable format.” See G. L. c. 66, § 6A(d). Conclusion Accordingly, the Office is ordered to provide Mr. Quemere with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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.

Daniel Sheridan, Esq. SPR20/1734 Page 4 September 30, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Quemere