Stefan Liu v. Brockton, City of - Law Department (SPR 20222705)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 1, 2022 SPR22/2705 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 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 City furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On November 7, 2022, Stefan Liu requested five categories of records, and modified his request on November 9, 2022, seeking the following: 1. A copy of all active union contracts between Brockton municipality and any union representing any law enforcement employees within Brockton PD. We do not require any non-law enforcement union contracts for Brockton PD employees (e.g., mechanics, janitors, technicians, etc.). 2. All lists, logs, ledgers, or spreadsheets detailing any instance in which arbitration was sought between any law enforcement union and Brockton PD. 3. All records, decisions, and submissions for each instance of arbitration between Brockton PD and any law enforcement union. 4. All lists, logs, ledgers, or spreadsheets detailing any instance in which post- arbitration judicial review was sought by any law enforcement union or Brockton PD. 5. All records, decisions, and submissions for each instance of post-arbitration litigation 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 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. SPR22/2705 Page 2 December 1, 2022 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 (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 November 22, 2022 petition, the City requests an extension of thirty (30) days. The City notes that it has already “gathered and sent the current, active contracts and current memoranda of agreement for the Brockton Police Patrol Officers and Supervisors unions, which represent Brockton’s law enforcement personnel.” The City goes on to explain that “Requests No. 3 and 5, even as modified on November 9, 2022, do narrow the scope of the request, but nevertheless will require significant time and fees to properly respond to. Because the city does not compile data in the manner sought in requests 2 and 4, administrative personnel will have to review arbitration and any Court records to determine which cases may satisfy the Requests.” Additionally, the City states that it “estimates in good faith that that the number of pages it will review and redact in order to comply with requests 3 and 5 is approximately 1000 pages.” I find that in light of the need to search for, collect, segregate and examine the records, and efforts undertaken by the City in fulfilling the current request, the City has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). The City is granted an extension of 30 business days.

Anthony J. Donegan, Jr., Esq. SPR22/2705 Page 3 December 1, 2022 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, 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).

Anthony J. Donegan, Jr., Esq. SPR22/2705 Page 4 December 1, 2022 Current Petition In its November 22nd petition, the City states that “the records involve subject matter that will likely contain excludable and redactable material (e.g. legally privileged communications, attorney work product, employees’ and others’ personal information).” 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. Conclusion Accordingly, I find the City has established good cause for a time extension of 30 business days as described above. Additionally, to the extent the responsive records contain the exempt information described above, the City may assess a fee for segregation and redaction. This office encourages Mr. Liu 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 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, Mr. Liu 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: Stefan Liu