Grace Ferguson v. Brookline, Town of - Police Department (SPR 20221012)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 12, 2022 SPR22/1012 Amanda Williams Records Clerk Brookline Police Department 350 Washington Street Brookline, MA 02445 Dear Ms. Williams: I have received the petition of Grace Ferguson of WBUR appealing the response of the Town of Brookline Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 12, 2022, Ms. Ferguson requested a copy of internal affairs investigation records for a named officer. The Department responded on April 29, 2022. Unsatisfied with the response, Ms. Ferguson petitioned this office and this appeal, SPR22/1012, was opened as a result. Fees -Municipalities If there are any fees associated with a response a written, good faith estimate must be · provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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, 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 SPR22/1012 Page 2 May 12, 2022 municipalities may charge more than $25 per how 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). 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). The Department’s April 29th fee estimate In its April 29th response, the Department provided a fee of $275, stated as follows: Segregation and redaction = 13 hours First two hours = no charge 11 hours @ $25 per hour = $275 Although the Department has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 11 hours of employee time, it is unclear how the Department requires this many hours to produce responsive records. It is not clear from the Department's estimate how many hours are allocated to search, and how many hours are allocated for segregation, and redaction of the records. It is also unclear whether the segregation and redaction is required by law. Further, the Department’s fee estimate lacks confirmation that the rate of $25 per hour is of the lowest paid employee who is capable of performing the task(s). In addition, it is uncertain what tasks are involved to prepare responsive records for production. As such, the Department must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the $275 fee assessed in its April 29th estimate is consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Department is ordered to provide Ms. Ferguson with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such responses must be provided to this office. It is preferable to send an electronic copy of the responses to this office at pre@sec.state.ma.us.

Amanda Williams SPR22/1012 Page 3 May 12, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Grace Ferguson