Kevin Tagliaferri v. Brockton, City of - Police Department (SPR 20243049)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 15, 2024 SPR24/3049 Sergeant Kevin Amaral Bureau of Professional Standards Brockton Police Department 7 Commercial Street Brockton, MA 02302 Dear Sergeant Amaral: On November 12, 2024, this office received your petition on behalf of the Brockton Police Department (Department) seeking a waiver of statutory limits on fees that may be assessed in responding to the request. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Department furnished a copy of the petition to the requestor, Attorney Kevin Tagliaferri. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On November 9, 2024, Attorney Tagliaferri requested “any and all existing Internal Affairs reports, complaints or related documents in which [an identified individual] is a party, for the period January 1, 2015 to November 1, 2024.” Petition to assess fees – Municipalities 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 understanding that this request was not made for a commercial purpose. 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

Kevin Amaral SPR24/3049 Page 2 November 15, 2024 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). Fee in Excess of $25.00 per Hour In its petition, the Department requests to charge a fee of $83.95 per hour, and provides the following in support of its request: Given the sensitive nature of these files, Department policy specifically requires that these files be maintained in a secure environment, separate from other records. Only three employees have access to these files, which are located in the Bureau of Professional Standards; a captain, a lieutenant, and a sergeant. The lowest paid employee with access to these confidential records who can perform the task required for this public records request is a Bureau of Professional Standards Investigator who holds the rank of sergeant. The sergeant has a normal hourly compensation rate of $83.95.

Kevin Amaral SPR24/3049 Page 3 November 15, 2024 Based on the information provided in the Department’s petition, I find the Department has not met its burden to explain how the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). Accordingly, permission to charge in excess of $25.00 per hour cannot be granted at this time. Conclusion Accordingly, I find the Department has not met its burden to assess fees in excess of $25.00 per hour. This office encourages Attorney Tagliaferri and the Department 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 Department must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Sincerely, Manza Arthur Supervisor of Records cc: Kevin Tagliaferri, Esq.