Jonathan Wells v. Brockton, City of - Law Department (SPR 20212425)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 28, 2021 SPR21/2425 Attorney Allison Cogliano City of Brockton Law Department 45 School Street Brockton, MA 02301 Dear Attorney Cogliano: I have received your petition on behalf of the City of Brockton Law Department (City) seeking permission to charge for time spent segregating or redacting responsive records and an extension of time to produce records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the City furnished a copy of this petition to the requestor, Mr. Jonathan Wells. Id. In a letter dated September 7, 2021, Mr. Wells requested “[t]he [City’s] search warrant database, covering warrants executed during calendar year 2019,” as well as “[f]or each search warrant executed during calendar year 2019, all records that show the application, date of execution, location, reason, what was seized, the returns, and any other records pertaining to individual search warrants.” 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, § 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

Attorney Cogliano SPR21/2425 Page 2 September 28, 2021 10(d)(iv). It is my determination that the 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 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) Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the 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.

Attorney Cogliano SPR21/2425 Page 3 September 28, 2021 G. L. c. 66, § 10(c). Current Petition In its September 21, 2021 petition, the City “respectfully requests that [the Supervisor] approve the City’s petition to assess fees for time spent for compilation.” The City additionally petitioned requesting “an extension of thirty (30) business days to comply” with the records request. With respect to the fee petition, the City explains that “upon an initial search, there were 62 search warrants executed in 2019.” The City states that the responsive records contain information which are exempt pursuant to the following: 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 explains that “[p]ursuant to the above-mentioned statutes, segregation and redaction are likely necessary… [i]n order to produce the documents without violating public records law.” Each record “would first need to be searched through the Board of Parole database in order to ensure the matter is not ongoing, so as to render them exempt under the investigatory exemption pursuant to MGL c. 4, §7(26)(f). Then, if the warrant is not related to an ongoing investigation, it would need to be printed and reviewed for the above-mentioned exemptions and then redacted in turn.” The City estimates that this process will take “approximately fifteen (15) minutes per warrant (this includes applications, resulting reports and other related documents, as requested) to run through Board of Parole database, print, review and redact.” As a result, the City estimates “charging a fee of $337.50 (15.5 hours (930 minutes) – first 2 hours) x ($25).” The City states that the “estimated fee represents an actual and good faith representation by the City of Brockton to comply with this request. This fee is necessary such that the request cannot be prudently completed without spending the additional time reviewing each warrant and associated documents for exempt information.” With respect to the time petition, the City explains that “[a]side from the [City’s] day-to- day responsibilities… the Massachusetts Peace Officer Standards and Training (POST) Commission requires certain standards to be met by law enforcement for certification this month” and “the Brockton Police Department is still adjusting and catching up from the police department’s recent cyber-attack.” The City states that “[t]he aforementioned circumstances have

Attorney Cogliano SPR21/2425 Page 4 September 28, 2021 created significant obstacles in the record keeping departments. As such, the City submits this petition for an extension of thirty (30) days to comply.” 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 or to charge in excess of $25 an hour. Please note, this does not preclude the City from charging for segregation and redaction that is required by law at $25.00 per hour. With respect to the time petition, I find that in light of the above, 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 20 business days to furnish copies of records responsive to Mr. Wells request. See G. L. c. 66, § 10(c). To the extent possible, the City must provide responsive records on a rolling basis. When preparing a fee estimate for the provision of the requested records, the City is advised to provide a detailed explanation to the requestor detailing why the amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The City must also provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. The City must provide a response to Mr. Wells within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Wells may appeal the City’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Mr. Wells 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: Mr. Jonathan Wells