Brendan Noonan v. Brockton, City of - Police Department (SPR 20210738)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 31, 2021 SPR21/0738 Sgt. Kenneth Lofstrom Brockton Police Department 7 Commercial Street Brockton, MA 02302 Dear Sgt. Lofstrom: I have received your petition on behalf of the City of Brockton 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 March 24, 2021, Attorney Patrick Noonan requested records and reports pertaining to “use of force.” 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 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). 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 SPR21/0738 Page 2 March 31, 2021 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. Current Petition In its petition, the Department states that they will be required to “make certain redactions to those records in accordance with the Public Records Law. MGL c. 4 subsection 7(26)(c) states in part any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” The Department explains that “[i]n this case, The Use of Force Forms have individuals names, date of births, and addresses which I believe need to be redacted to protect that persons privacy.” The Department indicates that the “lowest paid employee who has the necessary skill to complete the search, segregation, and redaction is Sergeant Scott Besarick whose normal hourly rate is $44.77. This is due to the fact that Use of Force Reports are kept by the Internal Affairs Department and are stored in the Internal Affairs office.” The Department believes it will take “approximately 9 hours of search, segregation, and redaction time, based upon the following: Searching through the reports and redacting each copy, and then making copies of the redacted copies to make sure all personal information is redacted.” The Department estimate of total amount of hours charged will be 7 hours (9-2 hours) resulting in a fee of $313.39 (7 x $44.77). Given the public interest served by limiting the cost of public access to the requested records, permission to charge for time spent segregating or redacting responsive records at a rate of $44.77 cannot be granted at this time. Conclusion The Department may not charge for fees in excess of $25 per hour for the provision of the requested records. Please note, this does not preclude the Department from charging for segregation and redaction that is required by law. When preparing a fee estimate for the provision of the requested records the Department is advised to provide a detailed explanation to the requestor detailing why the amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Department must provide a response to Attorney Noonan within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Attorney Noonan may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1).

Sgt. Kenneth Lofstrom SPR21/0738 Page 3 March 31, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Patrick Noonan