Records Requestor v. Braintree, Town of - Police Department (SPR 20201952)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 27, 2020 SPR 20/1952 Lt. Kevin Ware Braintree Police Department 282 Union Street Braintree, MA 02184 Dear Lt. Ware: I have received the petition of an anonymous requestor appealing the response of the Braintree Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, the requestor sought “any and all records relating to internal affairs complaints against Braintree Police Department officers between January 1, 2010 - August 8, 2020,” including 9 particular categories of information related to the complaints. The Department responded to the request on September 14, 2020, providing a fee estimate for the production of responsive records. Unsatisfied with this fee estimate, the requestor petitioned this office and this appeal, SPR20/1952, 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 attributed to the lowest paid employee who has the necessary skill required to search for, 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

Lt. Kevin Ware SPR20/1952 Page 2 October 27, 2020 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 September 17th fee estimate, the Department estimates that it will require 140 hours to produce responsive records, for a total cost of $3500. The Department estimates it will produce approximately 100 internal affairs files, with an associated copying cost of $125, for a total cost for production of records of $3625. Fees to search for, compile, segregate, redact or reproduce responsive records In its fee estimate, the Department states that “the information requested exists in paper form and will require a hand search to identify and segregate responsive documents. Further, as a result of the time period requested, some of the information may be maintained in archives and will need to be retrieved in order to complete the search.” The Department estimates that it will require 40 hours for the search and segregation of responsive records, and an additional 100 hours for redaction of the records. Based on the Department’s response, I find the Department must demonstrate that it may permissibly charge for time spent redacting the records. See 950 CMR 32.07(2)(m)(4). Although the Department states that “these files contain confidential information that must be redacted,” it is uncertain how redaction is required by law in this matter. Specifically, it is not clear which statutes, if any, require redaction. Please note that under the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). I am not aware that the Department has submitted a petition under G. L. c. 66, § 10(d)(iv). Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records. See 950 C.M.R. 32.06(4)(g). Therefore, the Department must clarify what information contained in the records must be redacted, and what statute requires this redaction. Compliance with G. L. c. 66, § 10(b), (e) In the appeal petition, the requestor states that “[t]he original request was submitted to the record holder on August 10, 2020. The record holder was never sought an extension pursuant to G.L. ch. 66, s. 10(b).”

Lt. Kevin Ware SPR20/1952 Page 3 October 27, 2020 The Department may not be permitted to charge fees associated with the records request if the District did not provide a response to the request within 10 business days, in compliance with the provisions of the Public Records Law. See G. L. c. 66, §10(e); see also 950 C.M.R. 32.06(2)(c). Based on the requestor’s appeal petition, it is uncertain whether the Department complied with G. L. c. 66, § 10(e) when responding to the requestor. Therefore, I find the Department must demonstrate whether it responded to the records request within ten business days following receipt of the request, in compliance with G. L. c. 66, § 10(e) and 950 C.M.R. 32.06(2)(c). Conclusion Accordingly, the Department is ordered to provide the requestor 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Records Requestor