MuckRock News v. Braintree, Town of - Town Clerk (SPR 20210462)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 8, 2021 SPR21/0462 Lt. Kevin Ware Braintree Police Department 282 Union Street Braintree, MA 02184 Dear Lt. Ware: I have received the petition of MuckRock News 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. Previous Appeals This request has been the subject of previous appeals. See SPR20/1952 Determination of the Supervisor of Records (October 27, 2020); SPR20/2212 Determination of the Supervisor of Records (November 24, 2020); SPR20/2212 Determination of the Supervisor of Records (January 14, 2021). In my January 14th determination, I found it was unclear if the Department’s August 11th response met all the requirements under G. L. c. 66, § 10(b) to assess a fee for the requested records. The Department was ordered to provide a response to the requestor, in a manner consistent with this order, the Public Records Law and its Regulations. The Department provided said response on January 28, 2021. Unsatisfied with this response, the requestor petitioned this office and this appeal, SPR21/0462, 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 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 SPR21/0462 Page 2 March 8, 2021 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 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 January 28th response In its January 28th response, the Department indicates its August 11, 2020 communication was a “preliminary response acknowledging the request.” The Department states the August 11th response stated “…if the effort estimate is more than two hours, we will create a proposed cost estimate…” The Department also indicates it sent a second communication on August 12, 2020, which “included a notification that additional time would be required to fulfill your request…” The Department further indicates “[o]n September 14, 2020, you received a cost estimate for the requested records. In its appeal, MuckRock News contends “[t]he department has not offered proper grounds for the fee estimate.” In light of the Department’s response, I find the Department did not provide a response in compliance with G. L. c. 66, § 10(b) in order to assess a fee for the requested records. See G. L. c. 66, § 10(b)(viii)( a municipality shall inform the requestor in writing no later than 10 business days after the initial receipt of the request for public records and shall include an itemized, good faith estimate of any fees that may be charged to produce the record). This office continues to encourage the requestor and the Department 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).

Lt. Kevin Ware SPR21/0462 Page 3 March 8, 2021 Conclusion Accordingly, the Department is ordered to provide a response to the requestor, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. 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. The requestor may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: MuckRock News