Todd Wallack v. Brockton, City of (SPR 20211849)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 2, 2021 SPR21/1849 Allison M. Cogliano, Esq. Assistant City Solicitor Brockton City Hall 45 School Street Brockton, MA 02301 Dear Attorney Cogliano: On July 26, 2021, this office received your petition on behalf of the City of Brockton (City) seeking 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 their petition to the requestor, Todd Wallack of WBUR. G. L. c. 66, § 10(c). On July 12, 2021, Mr. Wallack requested “[d]ocuments showing the names of sworn officers within the Brockton Police Department who were terminated for misconduct, agreed to resign or retire to resolve misconduct accusations, or resigned or retired with a pending internal affairs investigation since January 1, 2010.” 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; (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. 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. SPR21/1849 Page 2 August 2, 2021 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). Petitions 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 (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). 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 estimate 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

Allison M. Cogliano, Esq. SPR21/1849 Page 3 August 2, 2021 ($.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 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 July 26th petition, the City seeks “to assess fees for time spent compiling a response and a petition for an extension of time of sixty (60) days to provide the responsive records.” The City “…estimates that it will take approximately thirteen (13) hours to pull the responsive records and create a responsive list.” The City states, “[a]side from the Brockton Police Department’s day-to-day responsibilities they must tend to, a couple of circumstances are creating a need for an extension of time. Firstly, the Massachusetts Peace Officer Standards and Training (POST) Commission requires certain standards to be met by law enforcement for certification by mid-September. As you can imagine, this is taking significant time from record-keepers within Brockton Police Department.” In addition, “...the Mayor has recently filed the following public statement: ‘The City of Brockton is currently investigating a cyberattack on its Police Department computer systems. This event has not halted our ability to respond to emergency calls, patrol the Brockton community, or perform our vital policing functions. We have no reason to believe this was a targeted attack. Although other City departments have taken precautionary measures in response to the attack, those departments continue to perform their vital functions as well. Upon discovery of the event, we immediately began working with computer forensic specialists to investigate the incident, and our internal information technology staff has been working diligently to restore the systems at the Police Department to full technical functionality as quickly as possible. We also immediately notified federal and state law enforcement authorities of the attack, and our investigation into its source is ongoing.’” The City posits that “[t]he aforementioned circumstances have created significant obstacles in the record keeping departments. As such, the City submits this petition for an

Allison M. Cogliano, Esq. SPR21/1849 Page 4 August 2, 2021 extension of sixty (60) days to comply.” The City contends that “[t]he IA and personnel files are located in 3-4 cabinets with 3 drawers each. Each drawer contains approximately 10-20 files, totaling approximately 80 files. The City estimates it will take about ten minutes to search through each file to find and record the circumstances and reasoning behind the officer’s departure. As such, the City estimates it will take a total of 800 minutes or 13 hours. The hourly rate of the lowest paid city employee with necessary skill to compile the responsive records exceeds the $25.00 per hour statutory cap. As such, the fee for producing the requested records is $275 [11 hours (13 hours - first 2 hours) x $25.00 per hour).” Conclusion Given the public interest served by limiting the cost of public access to the requested records, I am unable to grant permission to charge for time spent segregating or redacting responsive records. However, this does not preclude the City from charging for segregation and redaction that is required by law. With respect to time, I find the City has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the City an extension of 30 business days to furnish copies of records responsive to Mr.Wallack’s request. See G. L. c. 66, § 10(c). To the extent possible, the City must provide responsive records on a rolling basis. Please note, Mr. Wallack 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: Todd Wallack