Benjamin Berke v. Brockton, City of - Police Department (SPR 20201744)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 1, 2020 SPR20/1744 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 complaint forms in the custody of the Brockton Police Department that name [an identified individual] on the field marked ‘Name of employee complaint is in reference to, if known’” from July 1, 1997 to the present. The Department responded to Mr. Berke on August 25, 2020, providing a fee estimate for the production of responsive records. Unsatisfied with this fee estimate, Mr. Berke petitioned this office and this appeal, SPR20/1744, 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). 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 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 SPR20/1744 Page 2 October 1, 2020 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 25th fee estimate, the Department estimates that it will require 24 hours to produce responsive records, less two hours, for a cost of $550. The Department additionally estimates it will produce approximately 100 pages of responsive records. Accordingly, the Department’s estimate provides a total cost of $555. Fees to search for, compile, segregate, redact or reproduce responsive records In its response, the Department estimate that it will require 24 hours to “research review and process” the records. Despite the Department’s statement, it is unclear what tasks the Department intends to perform, and how it arrived at the 24 hour figure. The Department must provide further information regarding this matter. Employee time The Department’s estimate indicates that it is charging $25 per hour for time spent responding to the request. However, the Department does not identify which employees it expects to perform the work involved in responding to the request. It is therefore unclear whether the Department calculated its estimate using the hourly rate of the lowest-paid employee capable of performing the work. See 950 C.M.R. 32.07(2)(i). The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Mr. Berke with a revised fee estimate for this request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable 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 SPR20/1744 Page 3 October 1, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Benjamin Berke