Maggie Mulvihill v. Brockton, City of (SPR 20232124)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 21, 2023 SPR23/2124 Kayla J. Venckauskas, Esq. Assistant City Solicitor City of Brockton 45 School Street Brockton, MA 02301 Dear Attorney Venckauskas: I have received the petition of Professor Maggie Mulvihill appealing the response of the City of Brockton (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 22, 2023, Professor 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[.] Previous Petition This request was the subject of a previous fee and time petition from the City. See SPR23/2116 Determination of the Supervisor of Records (September 13, 2023). In my September 13th determination, I granted the City an extension of 30 business days to furnish records, and found that the City may assess a fee for segregation and redaction. Concurrent with its petition to this office, the City also provided a fee estimate to Professor Mulvihill on 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

Kayla J. Venckauskas, Esq. SPR23/2124 Page 2 September 21, 2023 September 6, 2023. Objecting to the fees, Ms. Mulvihill appealed, and this case was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response, a written good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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).

Kayla J. Venckauskas, Esq. SPR23/2124 Page 3 September 21, 2023 Current Appeal In her appeal petition, Professor Mulvihill contends that she “has requested a series of records ... that would be stored digitally and not require manual searches of hard copy records, such as basic financial information, rules and regulations, records of deposits or expenditures and more.” The City’s September 6th Fee Estimate In its September 6, 2023 response, the City provides a total fee estimate of $3,231.25. In support of its fee estimate, the City provides the following information: 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 records will also 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 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 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. . . . [W]hen calculating the time for searching, compiling, segregating and redacting the requested documents, the City’s fee estimate is $3,231.25 ($25.00 x [131.25 hours– first 2 hours]). This estimate is based on the Evidence Officer spending 7 minutes on 25 sets of documents per month for 45 months.

Kayla J. Venckauskas, Esq. SPR23/2124 Page 4 September 21, 2023 Although the City has explained the tasks involved in searching and compiling the records, it is unclear from the City’s response why the City requires “7 minutes per each set of documents” to review the records. The City must provide further explanation of the contents of these records, the number of pages per each set, and why it would require 7 minutes to review each set of documents. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). This office encourages Professor Mulvihill and the City to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a 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 the records sought more efficiently and affordably). Conclusion Accordingly, the City is ordered to provide Professor Mulvihill with a response to her request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Maggie Mulvihill