Namrata Sampath v. Brockton, City of - Law Department (SPR 20230127)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 30, 2023 SPR23/0127 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 January 5, 2023, Namrata Sampath, on behalf of Enterprise News, requested “all records from Jan. 1, 2013 through today of allegations of misconduct against active and transferred officers, including the name, date of hire and transfer date (if applicable), the charges/violation/infraction, disposition and discipline (if applicable).” 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

Anthony J. Donegan, Jr., Esq. SPR23/0127 Page 2 January 30, 2023 (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 January 20, 2023 petition, the City seeks “a 30-day extension… as this request would greatly burden the Police, IT and Law Departments, and hamper City employees’ efforts to perform their other job responsibilities.” The City states: We estimate that three separate City departments produce documents that may be responsive to [Ms. Sampath’s] request (Police Department Internal Affairs Division; Law Department and Information Technology (IT) Department). At least five to six separate persons often review files, prepare and submit written reports, letters, or “notices” between the chief of Police, the subject of the investigation and Law Department. Each person involved in these investigations produces and sends a substantial number of reports, letters and notices and court related documents on a yearly basis. In addition, a substantial number of the records are not yet in digital form, and will have to be reviewed if responsive, photocopied, then redacted in order to send them to [Ms. Sampath]. The City estimates the entire records of at least 51 officers and estimated 173 separate investigations will need to be reviewed carefully to determine and excise any material that is subject to exceptions and/or exemptions under the public records law. A conservative estimate of the volume of document pages produced an estimated average of 30 pages per investigation. The true number may greatly exceed the estimated average number of pages. The estimated total number of document pages to review for 173 investigations exceeds 5,193. On average the City estimates time in excess of 1 minute each to review, redact, and segregate or print 5,190 documents. The estimated time required of this task will exceed 75 hours.

Anthony J. Donegan, Jr., Esq. SPR23/0127 Page 3 January 30, 2023 The total estimated time for review and segregation of the above documents is estimated to exceed 86.5 hours. I find that in light of the need to search for, collect, and examine the records and the efforts undertaken by City in fulfilling the current request, the City has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the City an extension of 30 business days to furnish copies of records responsive to Ms. Sampath’s request. See G. L. c. 66, § 10(c). Petitions to assess fees 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 or to charge in excess of $25 an hour for the provision of public 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 the request is not 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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,

Anthony J. Donegan, Jr., Esq. SPR23/0127 Page 4 January 30, 2023 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 10 C.M.R. 32.06(4) Current Petition In its January 20th petition, the City requests “to assess fees for time spent segregating and redacting” responsive records. The City provides the following information: [W]hen calculating the cost of printing, segregating and redacting the requested documents, City’s fee estimate is $2,112.50 ($25.00 x [86.5 – first 2 hours]). This estimated fee represents an actual and good faith representation by the City… to comply with the request. In truth, the fee estimate provided likely will not cover the actual cost incurred by the City to comply with [Ms. Sampath’s] request, as the lowest paid employee who has the skills required to perform these redactions is in excess of the statutory maximum hourly rate of $25.00. Further, this fee is necessary such that the request cannot be prudently completed without making the applicable redactions as described. The City is unaware of a means to make the requested documents available for inspection without having them first reviewed and redacted by the appropriate City employees. In a subsequent email to this office and Ms. Sampath on January 30, 2023, the City states: There may… be instances where Sec. 4(26)(b) pertaining solely to the City’s and its Police Department’s internal personnel policies and practices, such that disclosure would inhibit performance of necessary Government functions. Id., in the context of the public’s right to review relevant public records. See Globe Newspaper Co. v. Boston Retirement Board, 388 Mass. 427, 432-33 (1983). Review of the records may also give rise to exemption (c); the privacy exemption. G.L.c.4, Sec. 7(26)(c), limited to medical files, and other information that pertains solely to specific individuals, the disclosure of which may constitute an unwarranted invasion of personal privacy. Id. Based on the information provided in its 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

Anthony J. Donegan, Jr., Esq. SPR23/0127 Page 5 January 30, 2023 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 charge for the segregation and redaction of such exempt material. Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition, the City is permitted an extension of 30 business days to furnish copies of records responsive to Ms. Sampath’s request. Further, the City is permitted to charge for time spent segregating and redacting the requested records. I encourage the parties to communicate further to enable the City to provide records in an efficient and affordable manner Please note, Ms. Sampath 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(d)(iv)(4), l0A(c). Sincerely, Manza Arthur Supervisor of Records cc: Namrata Sampath