Benjamin Berke v. Brockton, City of - Police Department (SPR 20201737)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 1, 2020 SPR20/1737 Sgt. Kenneth Lofstrom Records Access Officer Brockton Police Department 7 Commercial Street Brockton, MA 02302 Dear Sgt. Lofstrom: I have received the petition of Benjamin Berke appealing the response of the Brockton Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Berke requested “[a]ll citizen complaints and compliments submitted since Jan. 1, 2019.” Previous Appeal This request has been the subject of a previous appeal. See SPR20/1377 Determination of the Supervisor of Records (August 27, 2020). In my August 27th determination, I ordered the Department to revise its fee estimate. The Department responded to Mr. Berke on August 31, 2020, providing a fee estimate for the production of responsive records. Unsatisfied with this fee estimate, Mr. Berke petitioned this office and this appeal, SPR20/1377, was opened as a result. Fee Estimates If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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). 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 SPR20/1737 Page 2 October 1, 2020 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 fewer. 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 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). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Department’s Fee Estimate In its August 5th fee estimate, the Department estimates that it will require 16 hours to produce responsive records, less two hours, for a cost of $350. The Department additionally estimates it will produce approximately 200 pages of responsive records. Accordingly, the Department’s estimate provides a total cost of $360. Fees to redact responsive records In my August 27th determination, I found it was unclear what information the Department intended to redact from the responsive records, and whether such redaction is required by law. In its August 31st response, the Department explains that the records contain “information…(names and addresses of the complainants) that are intimate details of a highly personal nature and as such would need to be redacted” pursuant to the privacy clause of Exemption (c). As noted above, 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). While I find that the Department may permissibly redact the names and addresses of complainants pursuant to Exemption (c), such redaction is not required by law. I am not aware that the Department has submitted a petition under G. L. c. 66, § 10(d)(iv). Accordingly, the Department may not charge for time spent redacting this information. Conclusion Accordingly, the Department is ordered to revise its fee estimate 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 SPR20/1737 Page 3 October 1, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Benjamin Berke