Chris Fitzgerald v. Brockton, City of - Police Department (SPR 20211604)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 1, 2021 SPR21/1604 Allison M. Cogliano, Esq. Assistant City Solicitor Brockton City Hall 45 School Street Brockton, MA 02301 Dear Attorney Cogliano: I have received your petition on behalf of the City of Brockton (City) seeking an extension of time to produce records and requesting 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); G. L. c. 66, § 10(d)(iv). On June 22, 2021, Chris Fitzgerald requested the following: 1. List of all stops and searches (sometimes known as Field Interrogation Reports or Observations) [FIOs] from the dates of January 1, 2019 until January 1, 2021 including but not limited to name of the officers involved in the stop, location of stop, race of person stopped, gender of person stopped, age of person stopped, outcome of the stop (such as arrest, ticket, none) and any other information available on the stop. 2. Badge numbers of all officers involved in such stops. 3. Name, version, and provider of case management system. Petition 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; 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. SPR21/1604 Page 2 July 1, 2021 (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). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. -- 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). Current Petition In its June 28, 2021 petition, the City requests “an extension of thirty (30) days to comply” with the request. The City expalins the following: The Brockton Police Department ran a preliminary search and discovered that the records responsive to this request include approximately 400 FIOs. These records are likely to contain sensitive information that is exempt from public record and will require redactions. The City estimates it could print approximately 50 FIOs per hour. This totals 8 hours (400 / 50) just to print all reports. Printing these reports is required in order to redact them. This time estimate includes the time it will take to open each FIO and call log individually and either 1.) Print to PDF to create a redactable document or 2.) Print a physical copy. Next, in order to review and redact the approximately 400 FIOs and associated call logs, taking approximately 2 minutes per report, it would take the City an estimated 13 hours ([2x400] / 60). Thus, the City predicts it will take approximately 19 hours to complete its response. I find in light of the need to collect, segregate and examine the requested records, the scope of redaction required, as well as efforts undertaken by the City in fulfilling the current request, 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).

Allison M. Cogliano, Esq. SPR21/1604 Page 3 July 1, 2021 Petitions to Assess Fees The Supervisor of Records (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. 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. 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 or to charge in excess of $25 an hour for the provision of public 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 is not 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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) 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 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

Allison M. Cogliano, Esq. SPR21/1604 Page 4 July 1, 2021 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). -- Current Petition In its June 28, 2021, the City request “to assess fees for time spent segregating and redacting pursuant to G.L. c. 66, §10(d)(iv)” The City explains: [T]he records responsive to this request include approximately 400 FIOs . . [T]he responsive records are likely to contain sensitive information that is exempt from public record and will require redactions. Specifically . . . the City 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). . . . In order to produce field investigation and observation reports (FIOs), City will need to individually open each report to either 1.) print to PDF to create a redactable document or 2.) physically print each report and call log out. The Brockton Police Department estimates there are 400 FIOs within the requested years. The City estimates it could print approximately 50 reports/citations per hour. This totals 8 hours. Next, in order to review and redact the approximately 400 FIOs, taking approximately 2 minutes per report and call log, it would take the City an estimated 13 hours ([2x400]/60). . . . Further, this fee is necessary such that the request cannot be prudently completed without making the applicable redactions as described. The City is unaware of a means to make the requested documents available for inspection without having them first reviewed and redacted by the appropriate City employee. Accordingly, the City respectfully requests that you approve the City’s petition to assess fees for time spent segregating and redacting as described above. 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 that is not required by law cannot be granted. However, this does not preclude the Department from charging for segregation and redaction that is required by law under Exemption (a).

Allison M. Cogliano, Esq. SPR21/1604 Page 5 July 1, 2021 Conclusion With respect to the time petition, I find the City has established good cause for a time extension of 30 business days as described above. This office encourages Chris Fitzgerald and the City 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 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, Chris Fitzgerald 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: Chris Fitzgerald