Benjamin Berke v. Brockton, City of - Police Department (SPR 20201964)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 27, 2020 SPR20/1964 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. Previous Appeal This request has been the subject of a previous appeal. See SPR20/1744 Determination of the Supervisor of Records (October 1, 2020). In my October 1st determination, I found that the Department had not met its burden of specificity to charge a fee of $555 for the production of responsive records. The Department provided a revised fee estimate on October 1, 2020, providing additional explanation regarding its estimate. Unsatisfied with this fee estimate, Mr. Berke petitioned this office and this appeal, SPR20/1964, was opened as a result. Fee Estimates If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 SPR20/1964 Page 2 October 27, 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 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 October 1st response, the Department explains that there is “some information in the citizen complaints (names, addresses and telephone numbers of the complainants) [that] would have to be reviewed and 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, 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. Explaining how it arrived at its estimate of 24 hours to produce records, the Department states that “[w]e would have to go through 23 years of complaints to find the complaints in question and then redact the complainants personal information and then make copies.” Despite the Department’s explanation, I find it remains unclear how it arrived at the 24 hour figure. The Department must clarify how much time it expects to spend searching for and segregating responsive records, reviewing for redactions, and producing copies.

Sgt. Kenneth Lofstrom SPR20/1964 Page 3 October 27, 2020 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Benjamin Berke