Grace Ferguson v. Brookline, Town of - Police Department (SPR 20220918)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 26, 2022 SPR22/0918 Neil Harrington Traffic/Records Division Supervisor Brookline Police Department 350 Washington Street Brookline, MA 02445 Dear Mr. Harrington: I have received your petition on behalf of the Brookline Police Department (Department) seeking a waiver of statutory limits on fees that may be assessed in responding to the request 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); see also 950 C.M.R. 32.06(4). As required by law, the Department furnished a copy of this petition to the requestor. Id. Originally, on April 12, 2022, Grace Ferguson of WBUR requested internal affairs records of a named officer. 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

Neil Harrington SPR22/0918 Page 2 April 26, 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 April 8, 2022 petition to this office, the Department states it “…has received a public records request which will require an estimated 13 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 11 hours of which the Department will be sending an invoice to the requester for upon approval.” The Department then states, “[t]he files that are requested are internal affairs files, 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, separate from other records.”

Neil Harrington SPR22/0918 Page 3 April 26, 2022 Fee in Excess of $25.00 per hour In its petition, the Department also states the following concerning its request to charge a fee in excess of $25.00 per hour: The lowest paid employee with access to these confidential records who can perform the task required for this public records request is the IAD 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. It would also undermine confidence among department employees in the confidentiality of the internal affairs process, which would be detrimental to the ability to conduct effective internal affairs investigations and also undermine our ability to provide effective law enforcement. 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 $45.35, which is the hourly rate of IAD Officer. Conclusion Given the public interest served by limiting the cost of public access to the requested records, permission to charge for time spent segregating or redacting responsive records cannot be granted. In addition, the Department may not charge for fees in excess of $25 per hour for the provision of the requested records. 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 Ms. Ferguson within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Ferguson may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Grace Ferguson Amanda Williams