Andrew Quemere v. Brockton, City of - Police Department (SPR 20221931)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 29, 2022 SPR22/1931 Allison M. Cogliano, Esq. Assistant City Solicitor City of Brockton City Hall 45 School Street Brockton, MA 02301 Dear Attorney Cogliano: I have received your petition on behalf of the Brockton Police Department (Department) seeking an extension of time to produce records, 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). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On August 8, 2022, Mr. Quemere requested five categories of records relating to the Department’s use of force tracking and policies, including data and reports from “the department’s use-of-force tracking software.” Petitions 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 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. SPR22/1931 Page 2 August 29, 2022 (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). 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) shall 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). Request for Additional Time to Produce Responsive Records In its August 22, 2022 petition, the Department requests “an extension of thirty (30) days to comply” and states the following: [B]ecause BPD does not have a “use-of-force tracking software”, a fee would be necessary in order to respond to part 3 of the request.... In order to respond to part 3, the BPD would need to search through physical files for every single year (the requester has refused to provide a time period). BPD had a total of 78 use of force reports submitted in 2021. Using that number as an average, BPD would need to read through approximately 78 use of force reports for every single year in order to redact information that would be exempt from public disclosure . . . As the requester has not provided a time frame for which he seeks responsive documents, if BPD went back to just the year 2000 (excluding years 2018, 2019, 2020 and 2021 as they had already been prepared), BPD would need to review an estimated 78 reports for 18 years or 1,404 reports. The City estimates it will take approximately 30 seconds to redact each report (30 seconds x 1,404 reports). In total, the City estimates it will take approximately 11.7 hours to adequately respond. This request is particularly lengthy and extremely burdensome on the everyday operations of the Brockton Police Department and Law Department and will take the above-mentioned time and likely more in order to compile and truly ensure adequate response. Please also note that, if the requester fails to modify the scope of his request, the City will be required to go back further in time in its collection of data and review far more reports than quoted above.

Allison M. Cogliano, Esq. SPR22/1931 Page 3 August 29, 2022 Based on the Department’s petition, I find that in light of the need to search for, collect, segregate and examine the records, the scope of redaction required to prevent unlawful disclosure, the capacity of the Department to produce the request without the extension, and efforts undertaken by the Department in fulfilling the current request, the Department has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). The Department is granted an extension of 30 business days. Please note the time may begin to run once the Department receives payment. G. L. c. 66, § 10(c). Petition to Assess Fees – Municipalities 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. 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) 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 2 (two) 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,

Allison M. Cogliano, Esq. SPR22/1931 Page 4 August 29, 2022 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 petition, the Department provides the following information concerning potential redactions: BPD would need to read through approximately 78 use of force reports for every single year [1,404 reports total] in order to redact information that would be exempt from public disclosure pursuant to the following Massachusetts statutes: 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; and 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). 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 other than that which is required by law cannot be granted. However, this does not preclude the Department from charging for segregation and redaction that is required by law under Exemption (a). Conclusion Accordingly, I find the Department has established good cause for a time extension of 30 business days as described above. However, the Department may not assess a fee for segregation and redaction other than that which is required by law under Exemption (a). This office encourages Mr. Quemere and the Department to communicate directly to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification to the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Any subsequent fee estimate from the Department must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii).

Allison M. Cogliano, Esq. SPR22/1931 Page 5 August 29, 2022 Please note, Mr. Quemere 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(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Andrew Quemere