Mitchell Kosht v. Brockton, City of (SPR 20211412)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 10, 2021 SPR21/1412 Allison M. Cogliano Assistant City Solicitor Law Department City of Brockton 45 School Street - City Hall Brockton, MA 02301 Dear Attorney Cogliano: I have received your petition on behalf of the City of Brockton (City) requesting an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, the City furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On May 19, 2021, Mitchell Kosht, on behalf of the Committee for Public Counsel Services (CPCS), requested: “1. A spreadsheet, e.g., Microsoft Excel, or other flat file format, e.g., Comma-separated Values (CSV) or Tab-separated Values (TSV), containing as many of the following fields of data as are stored in any electronic record system or software pertaining to each time the Brockton Police Department or an employee thereof has been sued for actions or omissions committed in the course of employment after 2010: a. Employment identification number of officer-defendant b. Last name of officer defendant c. First name of officer defendant d. Badge number of officer defendant e. Case caption f. Docket number g. Court h. Dates of any sworn depositions given by officer i. Date of any testimony by officer at trial j. Final disposition (settled, dismissed, verdict, etc.) k. Date of final disposition l. Amount of money, if any, paid by the city pursuant to a verdict or settlement in the case. 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

Allison M. Cogliano, Esq. SPR21/1412 Page 2 June 10, 2021 m. Amount of money, if any, paid by the officer involved pursuant to a verdict or settlement in the case. n. Amount of money, if any, the city paid for legal representation of officer in this. 2. Any other document which lists lawsuits brought against the Brockton Police Department or any employee thereof for acts or omissions committed in course of employment after 2010. 3. Each agreement signed by the city to settle claims against the Brockton Police Department after 2010. 4. For each lawsuit listed, the following documents related to the underlying events and accusations: a. Any and all internal investigation reports (however named); b. Arrest reports; c. Use-of-force or other supplemental reports (however named); d. Any relevant body camera footage e. Findings of a disciplinary hearing board (however named); f. Discipline actually imposed by the Brockton Police Department or other body; g. Any other documents relating to the Brockton Police Department’s efforts to ascertain the truth of the accusations relayed in each lawsuit listed above.” Petitions for an extension of time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b).

Allison M. Cogliano, Esq. SPR21/1412 Page 3 June 10, 2021 Extension of time to produce responsive records In its June 3, 2021, petition, the City indicates it “submits this petition for an extension of sixty (60) days to comply.” The City estimates it will take “approximately 112 hours and 50 minutes to retrieve and redact all information and reports.” The City indicates “…due to the increase in public records requests, the Brockton Police Department has been unduly burdened and continues to spend much of its time completing similar projects and must prioritize along with day-today responsibilities.” The City explains “[t]his request requires both the law department and the police department’s participation. Firstly, the law department will need to go into its physical files from 2010-2018 as files were not electronically stored until 2018. This is required to obtain dates for depositions and testimony. The law department estimates this will take approximately 7 minutes per case [40 cases times 7 minutes], totaling 280 minutes or 4 hours and 40 minutes… when the request goes to the police department, they will need to identify every officer involved in each case, which will likely amount to approximately 50 officers. The department will then need to go into each personnel file of the officers in order to get badge numbers and identification numbers as well as any disciplinary findings imposed as a result of the lawsuit. This will take an estimated 5 minutes per officer, or 250 minutes (4 hours and 10 minutes).” The City further explains “[t]he police department will then need to go through every single use-of-force report since 2018…in order to see which ones are related to the list of cases previously provided to you. The police department sees approximately 250 use of force reports per year and it will take approximately 3 minutes to read through each one. [250 reports x 4 years x 3 minutes] The department estimates it will take 3,000 minutes or 50 hours. Finally, in order to obtain arrest reports, the department will need to search each plaintiff through its system and print corresponding reports, taking approximately 3 minutes per plaintiff. [3 minutes x 40 plaintiffs]. The department estimates this will take an additional two hours. Finally, all of the above-mentioned documents will need to be reviewed for redaction. As such, the ~1,000 use of force reports and ~40 arrest reports will take an estimated 3 minutes per report to review and redact, taking approximately 3,120 minutes or 52 hours.” I find in light of the need to collect and segregate the request, as well as the the capacity of the City to produce the request without an extension, the City has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(ii). The City is granted an extension of 30 business days. Please note the time may begin to run once the City receives payment. G. L. c. 66, § 10(c). Petition to Assess Fees 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

Allison M. Cogliano, Esq. SPR21/1412 Page 4 June 10, 2021 (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). 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. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates 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 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. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records 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 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).

Allison M. Cogliano, Esq. SPR21/1412 Page 5 June 10, 2021 Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). The City requests “…to assess fees for time spent compiling and redacting response pursuant to G.L. c. 66, §10(d)(iii).” The City states “[i]n total, between the law department and police department, it will take an estimated 112 hours and 50 minutes. When multiplied by the $25 fee, the City’s estimated fee assessment is $2,800 [112 hours x $25].” The City indicates “all of the above-mentioned documents will need to be reviewed for redaction. As such, the ~1,000 use of force reports and ~40 arrest reports will take an estimated 3 minutes per report to review and redact, taking approximately 3,120 minutes or 52 hours.” The City states it “anticipates that the following redactions will need to be made in order to produce these documents: 1. Privacy information exempt from public record pursuant to MGL. c. 4, § 7(26)(c), MGL. c.214, § 1B, MGL c.93H, i.e. social security numbers and date(s) of birth; 2. Information properly withheld pursuant to MGL c. 4, § 7(26)(a), including MGL 6, § 167 (C.O.R.I.) and MGL c. 41, § 97 (juveniles); 3. Investigatory materials necessarily compiled out of the public view by BPD pursuant to MGL c. 4, § 7(26)(f), i.e., information that would prejudice ongoing investigative efforts; and 4. Information concerning security measures, emergency preparedness, threat or vulnerability assessments in accordance with MGL c. 4, § 7 (26)(n).” The City indicates “the fee estimate provided likely will not cover the actual cost incurred by the City to comply with his request, as the lowest paid employee who has the skill required to perform these redactions is in excess of the statutory maximum hourly rate of $25.00.” 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 cannot be granted. Please be advised that the current language of Exemption (c) prohibits its application to records related to law enforcement misconduct investigations. See G. L. c. 4, § (26)(c). However, this does not preclude the City from charging for segregation and redaction that is required by law. Conclusion Accordingly, I find the City has established good cause for a time extension of 30 business days as described above. To the extent the responsive records contain the exempt information required by law as described above, the City may assess a fee for segregation and redaction. The parties are encourages Mr. Kosht and the City to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a

Allison M. Cogliano, Esq. SPR21/1412 Page 6 June 10, 2021 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 agency to produce records sought more efficiently and affordably). Any fee estimate from the City must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Mr. Kosht has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d)(iv)(4), 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Mitchell Kosht