Ryan J. Matthews v. Brockton, City of - Law Department (SPR 20222515)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 14, 2022 SPR22/2515 Anthony J. Donegan, Jr., Esq. Assistant City Solicitor City of Brockton Law Department 45 School Street, 1st Floor Brockton, MA 02301 Dear Attorney Donegan: I have received your petition on behalf of the City of Brockton (City) seeking an extension of time to produce records, permission to charge for time spent segregating or redacting responsive records, and a waiver of statutory limits on fees that may be assessed in responding to the request. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, the City furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On October 23, 2022 and November 1, 2022, Attorney Ryan Matthews requested the following records, respectively: [1] copies of any correspondence, communication, complaints, reports, disciplinary action, memos or policies regarding civil complaints made against [specifically named] former City of Brockton Police Officers. [2] copies of any policies or procedures of the Brockton Police Department relative to training records and manuals used to train any arresting officers ... pertaining to [specifically named individuals] ... [and] copies of any correspondence, communication, complaints, reports, investigations or internal affair investigations, disciplinary action, memos or policies regarding civil complaints made against the above Brockton Police Officers. Subsequent to the City’s petition, in an email to the City on November 4, 2022, Attorney Matthews states that he has “no objection to the extra time.” Accordingly, I find it is unnecessary to address the portion of the City’s petition requesting an extension of time. 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 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

Anthony J. Donegan, Jr., Esq. SPR22/2515 Page 2 November 14, 2022 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). As discussed below, 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, 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 November 4, 2022 petition, the City states the following:

Anthony J. Donegan, Jr., Esq. SPR22/2515 Page 3 November 14, 2022 In total, the response to [the] request includes at least 330 pages of documents. Each page needs to be reviewed 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). In light of the City’s petition, I find the City has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the City may assess a fee for the segregation and redaction of such exempt material. The City is advised that the current language of Exemption (c) prohibits its application to records related to law enforcement misconduct investigations. See G. L. c. 4, § (26)(c). Fee in Excess of $25.00 per Hour In its November 4th petition, the City asserts that it “has determined that [the] request is for a commercial purpose.” In his November 4th email to the City, Attorney Matthews states that “this is for an indigent criminal defendant.” Accordingly, it is my determination that this request was not made for a commercial purpose. In its November 4th petition, the City states that it “is petitioning the Supervisor of Records to charge $60 per hour. This amount is still below the hourly wage of the lowest paid city employee with the necessary skill to compile and redact the responsive records.” The City argues that “this request is particularly lengthy and extremely burdensome on the everyday operations of the Brockton Police Department and Law Department.” Given the information provided in the City’s petition, I find the City has not met its burden to explain how 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, I find that, to the extent the responsive records contain the exempt information described above, the City may assess a fee for segregation and redaction. However, as described above, the City may not assess a fee in excess of $25.00 per hour. This office encourages Attorney Matthews and the City to continue to communicate directly in order 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

Anthony J. Donegan, Jr., Esq. SPR22/2515 Page 4 November 14, 2022 municipality to produce records sought more efficiently and affordably). Any subsequent fee estimate from the City must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Attorney Matthews 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: Ryan Matthews, Esq.