Jeremy Margolis v. Brookline, Town of - Town Clerk (SPR 20231785)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 4, 2023 SPR23/1785 Kerry Fleming Records Access Officer Town of Brookline 333 Washington Street, 6th Floor Brookline, MA 02445 Dear Ms. Fleming: On July 28, 2023, this office received your petition on behalf of the Town of Brookline (Town) seeking permission to charge for time spent segregating or redacting responsive records, as well as a waiver of statutory limits on fees that may be assessed in responding to the requests. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Town furnished a copy of this petition to the requestor, Jeremy Margolis. Id. On March 2, 2023, Mr. Margolis made three separate public records requests. In his first request, Mr. Margolis requested: [1] All emails (and their attachments) sent by [three named individuals] to any of [four named individuals] from January 1, 2023 to March 3, 2023[;] [2] All emails (and their attachments) received by [three named individuals] from any [of four named individuals] from January 1, 2023 to March 3, 2023. In his second request, Mr. Margolis requested: [1] All of the de-identified written exercises submitted to the 2023 Police Chief Screening panel as part of the hiring process for the chief of police[;] [2] The standardized rubric used to review the written exercises submitted to the 2023 Police Chief Screening Panel. In his third request, Mr. Margolis requested: [1] All 2021 and/or 2022 engagement, retainer, or scope of work agreements between the town of Brookline and the Police Executive Research Forum[;] [2] All emails (and their attachments) sent between September 1, 2021 and September 1, 2022, by [two named employees] to any employees of Police Executive Research Forum that include [identified names]. 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

Kerry Fleming SPR23/1785 Page 2 August 4, 2023 [3] All emails and their attachments received between September 1, 2021 and September 1, 2022 by [two named individuals] from any employees of Police Executive Research Forum that include [identified names]. 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

Kerry Fleming SPR23/1785 Page 3 August 4, 2023 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 received by this office on July 28, 2023, the Town seeks permission to charge for time spent segregating or redacting responsive records, as well as a waiver of statutory limits on fees that may be assessed in responding to the requests. Conclusion The Town submitted its petition on July 27, 2023, more than ten business days after receipt of the requests. In light of the fact the Town has not demonstrated it submitted a timely petition, 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 requests cannot be granted. G. L. c. 66, § 10(d)(iv); 950 C.M.R. 32.06(4)(g). Sincerely, Manza Arthur Supervisor of Records cc: Jeremy Margolis