Sean Sheridan v. Brockton, City of - Law Department (SPR 20220065)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 19, 2021 SPR22/0065 Allison M. Cogliano, Esq. Brockton City Hall 45 School Street Brockton, MA 02301 Dear Attorney Cogliano: This office received your petition on behalf of the Brockton Police Department (Department) seeking an extension of time to produce records as well as 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 Department furnished a copy of their petition to the requestor, Sean Sheridan. Id. On December 27, 2021, Mr. Sheridan requested “...any and all email conversations and phone numbers belonging to or written by [a former officer] or any attorney he may have hired after april 22, 2021” in addition to “...the employment history record of [an identified individual].” 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. G. L. c. 66, § 10(c). 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. SPR22/0065 Page 2 January 19, 2022 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) must 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 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

Allison M. Cogliano, Esq. SPR22/0065 Page 3 January 19, 2022 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) 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Current Petition In its petition dated January 11, 2022, the Department states it is “...submitting this petition as the responsive records may contain sensitive information that is exempt from public record and will require segregation and then redaction pursuant to the following: 1. Information that is exempt from public record pursuant to G. L. c. 4, § 7(26)(c), G. L. c. 4, § 7(26)(b), G. L. c. 4, § 7(26)(d), G. L. c. 268A, § 22, common law attorney client privilege, and the work product privilege; 2. 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; 3. 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); 4. 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 5. Information concerning security measures, emergency preparedness, threat or vulnerability assessments in accordance with MGL c. 4, § 7 (26)(n).”

Allison M. Cogliano, Esq. SPR22/0065 Page 4 January 19, 2022 The Department’s “...estimate would be that it would take approximately 4,581 minutes or just over 76 hours to complete this request. ([4,331 emails x 1 minute] + [250 pages x 1 minute] = 4,581 minutes). The 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 segregating and redacting the requested documents, the [Department’s] fee estimate is $1,858.75 ($25.00 x [76.35 hours – first 2 hours]).” With respect to time, the Department explains, “[t]his task will greatly burden the Brockton Police and Law Departments and will hinder each department’s ability to timely address its other day-to-day responsibilities. Accordingly, the [Department] is submitting this petition for an extension of time of ninety (90) days to provide the responsive records, in order to meet the deadline prescribed by 950 C.M.R. 32.06(4).” 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 Department from charging for segregation and redaction that is required by law. When preparing a fee estimate for the provision of the requested records the Department 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 Department must provide a response to Mr. Sheridan within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Sheridan may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Further, in light of the volume of responsive records, I find the Department has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(ii). I hereby grant the Department an extension of 30 business days to furnish copies of records responsive to Mr. Sheridan’s request. See G. L. c. 66, § 10(c). To the extent possible, the Department must provide responsive records on a rolling basis. Sincerely, Rebecca S. Murray Supervisor of Records cc: Sean Sheridan