Jessica Lewis v. Brockton, City of - Police Department (SPR 20212021)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 17, 2021 SPR21/2021 Allison M. Cogliano, Esq. Assistant City Solicitor 45 School Street Brockton, MA 02301 Dear Attorney Cogliano: On August 10, 2021, I received your petition on behalf of the City of Brockton Police Department (Department) 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, it is my understanding that the Department furnished a copy of this petition to the requestor, Ms. Jessica Lewis. G. L. c. 66, § 10(c). On July 27, 2021, Ms. Lewis requested: 1. Blank copy (or screenshot) of the police department’s incident report form. This request includes records showing the preset options for the “incident type” (or its equivalent) field. 2. Records of the 35 most recent incident reports and the 35 most recent applications for criminal complaints in which the cited offense was ‘Disturbing the Peace.’ 3. Records of the 35 most recent incident reports and the 35 most recent applications for criminal complaints in which the cited offense was ‘Disorderly Conduct.’ 4. Records of arrests as well as applications for criminal complaints made in whole or in part on the basis of (or which reference) panhandling or solicitation of funds. This request seeks any such records made on or after July1, 2019. 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: 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

Ms. Alison Cogliano SPR21/2021 Page 2 August 17, 2021 (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). Petition 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). Current Petition In its August 10, 2021 petition, the Department seeks “…an extension of sixty (60) days in order to comply with [the] request.” The Department notes that a recent cyberattack on the Department “created significant obstacles in the Brockton Police record keeping departments. Lieutenant Brenda Perez, RAO for the Brockton Police Department, is unable to complete searches and production of reports required by this request. As such, the [Department]… requests an extension of sixty (60) days in order to comply with this request.”

Ms. Alison Cogliano SPR21/2021 Page 3 August 17, 2021 The Department’s August 10, 2021 petition explained, “the production [of the responsive records] will require the redaction of potentially 70 incident reports and 70 applications for criminal complaints. Those 140 reports/applications will be responsive to numbers 2 and 3 of the request. In order to respond to number 4 of the request, Lieutenant Perez needs to do a preliminary search of how many panhandling/soliciting calls BPD has received since July 1, 2019. It is her good faith estimate that these are not common.” The Department states that “[a]ll of the above-mentioned documents will need to be reviewed for redactions under the following exemptions: 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 Department “estimates it will approximately three minutes to print, segregate and redact each report/application. Given the request for 70 incident reports and 70 applications for criminal complaint, the segregation and redaction of these documents will take approximately 420 minutes or 7 hours. Additionally, there may be additional time needed to segregate and redact those reports responsive to number 4 of [Ms. Lewis’s] request.” The Department states that “[t]he hourly rate of the lowest paid city employee with the necessary skill to compile and redact the responsive records exceeds the $25.00 per hour statutory cap. Thus, when calculating the time for printing, segregating and redacting the requested documents, the City’s fee estimate is $125 ($25.00 x [7 hours – first 2 hours]).” Conclusion I find that the Department has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the Department an extension of 30 business days to furnish copies of records responsive to Ms. Lewis’s request. See G. L. c. 66, § 10(c). With respect to the Department’s petition to assess fees, Ms. Lewis, in an August 20, 2021 email, agreed to pay the fee assessed by the Department. As such, I find it unnecessary to opine on the matter. This office encourages Ms. Lewis and the Department to continue to communicate to facilitate providing records efficiently and affordably. See G. L. c. 66, §10(b)(vii). Please note, Ms. Lewis 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)

Ms. Alison Cogliano SPR21/2021 Page 4 August 17, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Ms. Jessica Lewis