Andrew Quemere v. Braintree, Town of - Police Department (SPR 20202064)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 9, 2020 SPR20/2064 Lt. Kevin Ware Braintree Police Department 282 Union Street Braintree, MA 02184 Dear Lt. Ware: I have received the petition of Andrew Quemere 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, Mr. Quemere requested several categories of records pertaining to use-of-force incidents. The Department responded on October 8, 2020, providing a fee estimate for the production of responsive records. Unsatisfied with the Department’s response, Mr. Quemere petitioned this office and this appeal, SPR20/2064, 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, 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 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 SPR20/2064 Page 2 November 9, 2020 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 October 8th 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 it 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. Records format The Department indicates that it is charging for the cost for printing responsive records. In his appeal petition, Mr. Quemere indicates that he wishes to receive records in electronic format. Under the Public Records Access Regulations, a records access officer (RAO) must “to the extent feasible, provide public records to a requester in electronic format unless the record is not available in electronic form or the requester does not have the ability to receive or access the records in electronic format and if feasible, in the requester’s preferred format.” 950 C.M.R.

Lt. Kevin Ware SPR20/2064 Page 3 November 9, 2020 32.04(5)(d). If the Department intends to charge for the printing of responsive records, it must explain why it is not feasible to provide records electronically. Compliance with G. L. c. 66, § 10(b), (e) In his appeal petition, Mr. Quemere asserts that the Department failed to provide a response to his request within 10 business days. The Department may not be permitted to charge fees associated with the records request if the Department 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 Mr. Quemere’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: Andrew Quemere