Donelle S. O'Neal Sr v. Brookline, Town of - Police Department (SPR 20210018)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 12, 2021 SPR21/0018 Amanda Williams Records Clerk Brookline Police Department 350 Washington Street Brookline, MA 02445 Dear Ms. Williams: I have received your petition on behalf of the Brookline Police Department (Department) seeking a waiver of statutory limits on fees that may be assessed in responding to the requests. G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On January 4, 2021, Donelle S. O'Neal Sr. requested “a print out of Lt. Paul Campbell's closed investigations and findings over the last 9 years please and thank you.” Petitions for ability to assess fees Municipalities may not assess a fee for the first two 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 less. 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. 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 (Supervisor) 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). The Supervisor may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request, the fee is necessary such that the request could not have been prudently completed without the redaction, segregation or fee in 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

Amanda Williams SPR21/0018 Page 2 January 12, 2021 excess of $25 per hour, and the amount of the fee is reasonable and the fee is not designed to limit, deter or prevent access to requested public records. G. L. c. 66, § 10(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. Id. In its petition, the Department requests “…to be allowed to increase the hourly fee from the $25 to $47.61, which is the hourly rate of IAD Officer.” The Department indicates the request “…will require an estimated 26 hours for segregation and redaction. Per the public records law we will not charge a fee for the first 2 hours.” The Department further indicates “[p]ursuant to the Massachusetts Police Accreditation Commission standards (standard 52.1.2), it is mandatory that internal affairs files be maintained in a secure area and that the confidentiality of these files be protected.” The Department explains “[t]hese records are maintained in a locked filing cabinet, which is maintained in a separate locked office. This separate office is occupied by the Detective Lieutenant in charge of our Office of Professional Responsibility. Access to this office and these files is highly restricted, and the Detective Lieutenant in the Office of Professional Responsibility is the lowest ranked person with access to these files.” Although the Department states that the responsive records require segregation and redaction, it has not provided information regarding what exemptions may apply and why such records are likely to contain exempt information. Accordingly, the Department has not met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction, segregation or by assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). This office encourages Mr. O’Neal and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, I decline to approve the Department’s petition to charge a fee in excess of $25.00 per hour for segregation and redaction. Please note, however, this does not preclude the Department from charging for segregation and redaction that is required by law at a rate of no more than $25.00 per hour. When preparing a fee estimate for the provision of the requested records, the Department must reduce the amount of time charged for producing the records, or provide more detail

Amanda Williams SPR21/0018 Page 3 January 12, 2021 explaining why this amount of time is necessary. The requestor may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Donelle S. O'Neal Sr.