Maggie Mulvihill v. Brockton, City of (SPR 20232116)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 13, 2023 SPR23/2116 Kayla J. Venckauskas, Esq. Assistant City Solicitor City of Brockton 45 School Street Brockton, MA 02301 Dear Attorney Venckauskas: On September 6, 2023, this office 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 August 22, 2023, Professor Maggie Mulvihill requested the following records from January 1, 2020 to present: 1. pursuant to M.G.L. Ch. 94c, section 47 (k)(1), all reports documenting itemized accounting for all assets, moneys and proceeds from assets submitted to the Massachusetts state Treasurer’s office[;] 2. all records documenting drug-related seizures, including but not limited to internal police forms, control log entries or logbooks, incident reports and inventory and destruction records[;] 3. all records of deposits of drug-related currency to internal or external department accounts[;] 4. records of any transactions, receipts or spreadsheets that show purchases made with proceeds from state and federal forfeitures[;] 5. internal or external audits of the Brockton Police Department[;] 6. all rules and regulations, policies and/or standard operating procedures for the Brockton Police Department[.] Please note that in an email to this office and the City on September 6, 2023, Professor Mulvihill objected to the City’s petition. 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

Attorney Venckauskas SPR23/2116 Page 2 September 13, 2023 Petition 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. G. L. c. 66, § 10(c). Request for Additional Time to Produce Responsive Records In its September 6th petition, the City seeks “a 90-day extension to complete this request considering the time it will take to complete the search and go through resulting records. In support of its request, the City states: The City is currently working to gather records but response requires coordination with multiple departments as well as complex retrieval. The majority of the records responsive to this request require the Evidence Officer to go through hard copy log books and corresponding hard copy slips as these are not stored electronically or in an easily searchable format. Then the corresponding reports will need to be searched for and pulled. . . The City must undertake extensive review of documents stored separately and manually match said documents to determine what is responsive to this request. As most of these records are not stored electronically, it will be a massive undertaking for the BPD Evidence Officer. The BPD Evidence Officer is the only one with the knowledge and capability of determining which records are responsive to this request. The City further explains that, “[a]s BPD does not have extra staff to devote to this request, the Evidence Officer must complete this request in addition to their other duties. As a result, the Evidence Officer must work overtime in order to complete an extensive search and review.”

Attorney Venckauskas SPR23/2116 Page 3 September 13, 2023 I find that in light of the need to search for, collect, and examine the records, the capacity of the City to produce the request without the extension, 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 Professor Mulvihill’s request. See G. L. c. 66, § 10(c). Petitions to assess fees The 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, 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).

Attorney Venckauskas SPR23/2116 Page 4 September 13, 2023 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 September 6th petition, the City requests permission “to assess fees for time spent compiling, and segregating and redacting pursuant to M.G.L. c. 66, §§ 10[(d)].” In support of its petition, the City states: The records will. . . need to be reviewed for information that requires redaction pursuant to the following Massachusetts statutes: 1. Privacy information exempt from public record pursuant to M.G.L. c. 4, § 7(26)(c), M.G.L. c. 214, § 1B, M.G.L. c. 93H, i.e. social security numbers and date(s) of birth; 2. Criminal Offender Record Information pursuant to M.G.L. c. 6, § 167; and 3. Mental health records pursuant to M.G.L. c. 123 § 36. . . . The City estimates there are an average of 25 drug seizures per month, and producing these records will take about 7 minutes per each set of documents as the Evidence Officer will need to search 45 months of logbook entries and corresponding slips then scan or copy them and print the corresponding report. Further, as the above-listed redactions are required by Massachusetts State Law, the City is required to review said documents to ensure there is no public disclosure of this information. As such, the City must subsequently take time to review each document for statutorily required segregable/redactable 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, 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 Professor Mulvihill’s request. Further, 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 Professor Mulvihill and the City to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii)(a

Attorney Venckauskas SPR23/2116 Page 5 September 13, 2023 municipality shall suggest a reasonable modification of 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). When preparing a fee estimate for the provision of the requested records, the City is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The City must provide a response to Professor Mulvihill within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Sincerely Manza Arthur Supervisor of Records cc: Professor Maggie Mulvihill