Megan Mauskapf v. Brookline, Town of - Police Department (SPR 20220722)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 5, 2022 SPR22/0722 Amanda Williams Records Access Officer Brookline Police Department 350 Washington Street Brookline, MA 02445 Dear Ms. Williams: I have received the petition of the Brookline Police Department (Department) seeking a waiver of statutory limits on fees that may be assessed in responding to a public records request. G. L. c. 66, § 10(d)(iv). As required by law, the Department furnished a copy of this petition to the requestor. Id. On March 22, 2022, Attorney Megan Mauskapf requested various categories of records pertaining to a certain incident. 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). It is my determination that this request was not made 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) 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

Amanda Williams SPR22/0722 Page 2 April 5, 2022 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 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 current petition, the Department stated: The Department has received a public records request (attached) which will require an estimated 6 hours for segregation and redaction. Per the public records law we will not charge a fee for the first 2 hours. There will be an additional 4 hours of which the Department will be sending an invoice to the requester for upon approval. The files that are requested are maintained by the IT Division of the Brookline Police Department, which contain a mix of public and private information. These files are confidential and maintained separately from other files within our Department. Given the sensitive nature of some of these files, Department policy specifically requires that these files be maintained in a secure environment,

Amanda Williams SPR22/0722 Page 3 April 5, 2022 separate from other records. These records are maintained on a digital Record Management System in which Officers assigned to the IT Division have access to and the ability to copy said files. Access to this office and these files is highly restricted, and the IT Officer are the lowest ranked person with access to these files, RMS, and the ability to copy these files. The lowest paid employee with access to these confidential records who can perform the task required for this PRR is the IT Officer of the Department. To allow an employee of lower rank/pay access would violate our own department policy on confidentiality and security, and also jeopardize our status as an accredited police department. As no other employee is able to fill this request we are petitioning to be allowed to increase the hourly fee from the $25 to $31.76, which is the hourly rate of the lowest ranking IT Officer. Thank you. In light of the above, I find the Department has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, in light of the factors in G. L. c. 66, § 10(d)(iv), I find the Department may assess a fee limited to $31.76 per hour. When preparing a fee estimate for the provision of the requested records, the Department is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary and how the redactions are required by law. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Department must provide a response to Attorney Mauskapf within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Attorney Mauskapf may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note the requestor 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, § 10A. Sincerely, Rebecca S. Murray Supervisor of Records cc: Attorney Megan Mauskapf