Todd Wallack v. Brockton, City of - Police Department (SPR 20211997)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 20, 2021 SPR21/1997 Allison M. Cogliano, Esq. Assistant City Solicitor City of Brockton 45 School Street Brockton, MA 02301 Dear Attorney Cogliano: I have received the petition of Todd Wallack of WBUR appealing the response of the City of Brockton (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). 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.” The City responded on July 26, 2021, providing a fee estimate. Objecting to the fees, Mr. Wallack appealed, and this case was opened as a result. Previous Petition This request was the subject of fee and time petitions from the City. See SPR21/1849 Determination of the Supervisor of Records (August 2, 2021). In my August 2nd determination, I granted the City an extension of 30 business days, and declined to grant permission to charge for time spent segregating or redacting responsive records. I also noted that this did not preclude the City from charging for segregation and redaction that is required by law. Fee Estimate – Municipalities 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). 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. SPR21/1997 Page 2 August 20, 2021 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). The City’s July 26th Fee Estimate In its July 26, 2021 fee estimate, the City states the following: The 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). The City goes on to explain that “the City believes this is a more efficient and cost-effective way for [Mr. Wallack] to receive this information. Otherwise, redactions would be necessary and a higher fee may be assessed.” In his appeal petition, Mr. Wallack states the following: [T]he City didn’t provide any information on why it would need to access 80 files and summarize documents from those 80 files to respond to [WBUR’s] records request. It sounds like the city is proposing to go through every single file in the office, instead of simply providing a) log of IA investigations and the outcome of those investigations, which would typically include whether an officer was fired or resigned or b) use its superior knowledge to look at only the relevant files. The police chief or other command staff would likely be able to quickly identify which officers have been fired or resigned to avoid disciplinary action, obviating the need to go through all 80 files by hand. In addition, the City failed to provide a fee estimate that was sufficiently detailed. It is unclear how much time would be spent locating and copying the documents versus segregating/redacting the documents.

Allison M. Cogliano, Esq. SPR21/1997 Page 3 August 20, 2021 In light of my August 2nd determination, the City must clarify its fee estimate. Specifically, the City must describe how much time is needed to search for the records versus how much time is needed to segregate and/or redact. Additionally, the City must clarify whether it is charging for redactions required by law. Both the City’s fee estimate and Mr. Wallack’s appeal petition indicate a willingness to modify the scope of the request and the type of records sought. This office encourages Mr. Wallack and the City 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 the records sought more efficiently and affordably). Conclusion Accordingly, the City is ordered to provide Mr. Wallack with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Todd Wallack