Ananya Tiwari v. Brockton, City of - Law Department (SPR 20222753)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 6, 2022 SPR22/2753 Anthony J. Donegan, Jr., Esq. Assistant City Solicitor City of Brockton 45 School Street 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 14, 2022, Ananya Tiwari requested “copies of records related to cases of sustained findings of police misconduct at the Internal Affairs Unit of the Brockton Police, between 2017 and 2022.” 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 (vi) the public interest served by expeditious disclosure. 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. SPR22/2753 Page 2 December 6, 2022 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 30, 2022 petition, the City seeks “an extension of thirty (30) days” to provide responsive records. In support of its request, the City provides the following information: [T]hree separate City departments produce documents that may be responsive to [the] request the Brockton Police Department (BPD) Internal Affairs (IA); Law Department; and the Human Resources Department (HR). Each department employs between two and five separate persons who accept and process written and verbal reports from citizens or others on their behalf; then conduct investigations, and in many instances prepare and submit written reports, letters, or findings, conclusions and decisions relating to these complaints. In addition, the City is often obliged to communicate with other department personnel, witnesses, complainants, the subject(s) of investigations, attorneys and other advocates, union representatives, the City’s Law Department, inspector produces and sends a substantial number of reports, letters and notices on a yearly basis. Finally, these claims often become the subject of litigation and administrative disciplinary proceedings. The City conservatively estimates each of the 6 - 15 employees will review and work on an estimated 20 such responsive, current and past claims ... for each of the years enumerated. The estimated conservative total number of documents exceeds 5,000. The City also states that the responsive records “will encompass information that the City would not be obliged to produce (e.g., attorney-client or other privileged documents).” Based on the information provided above, 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, and the capacity of the City to produce the request without the extension, 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. SPR22/2753 Page 3 December 6, 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. SPR22/2753 Page 4 December 6, 2022 Current Petition In its November 14, 2022 petition, the City argues the following in support of its request to assess fees for segregation and redaction: The request is overly broad, and will encompass information that the City would not be obliged to produce (e.g., attorney-client or other privileged documents), or would otherwise be exempt from disclosure by the City under G.L.c.4, §7(26). See Id. at (b) “related solely to internal personnel rules and practices of the government unit… to the extent that proper performance of necessary governmental functions requires such withholding”; (c) personnel and medical files or information and any other materials relating to a specifically named individual… which may constitute an unwarranted invasion of privacy” (f) “investigatory materials necessarily compiled out of the public view” 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. However, this does not preclude the City from charging for segregation and redaction that is required by law under Exemption (a). Additionally, please be 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). Conclusion Accordingly, I find the City has established good cause for a time extension of 30 business days as described above. However, the City may not assess a fee for segregation and redaction, except for segregation and redaction that is required by law. This office encourages Ananya Tiwari 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, Ananya Tiwari 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).

Anthony J. Donegan, Jr., Esq. SPR22/2753 Page 5 December 6, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Ananya Tiwari