Rg Creation v. Brookline, Town of - Police Department (SPR 20243348)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 17, 2024 SPR24/3348 Amanda Williams Records Clerk Brookline Police Department 350 Washington Street Brookline, MA 02445 Dear Ms. Williams: On December 13, 2024, this office received your petition on behalf of the Brookline 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, Rg Creation (“requestor”). G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On December 2, 2024, the requestor sought “body cam footage of the incident on Saturday 11/30/24 at 7:49…” 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). 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

Amanda Williams SPR24/3348 Page 2 December 17, 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 $37.37 per hour, and provides the following in support of its request: The files that are requested are body worn camera digital files, which contain a mix of public and private information. These files are confidential and maintained separately from other files within our department. Given the sensitive nature of some of these files, department policy specifically requires that these files be maintained in a secure environment, separate from other records. These records are maintained in a server which is maintained in a separate locked office. This separate office is occupied by the Informational Technology Officers in charge of digital records management systems for the Brookline Police Department. Access to this office and these files/servers is highly restricted, and the IT Officers are the

Amanda Williams SPR24/3348 Page 3 December 17, 2024 lowest ranked persons with access to these files/severs. These officers have specialized training and security clearances to manage, maintain, and secure the digital files associated with the Department body cameras for our RMS. The lowest paid employee with access to these confidential records who can perform the task required for this public records request is the IT Officers of the department. To allow an employee of lower rank/pay access would violate our own department policy on confidentiality and security, and also jeopardize our status as an accredited police department. It would also undermine confidence in the security of these files, which would be detrimental to the ability to conduct effective investigations, the ability to provide effective law enforcement, as well as provide transparency. As no other employee is able to fill this request besides the IT Division Officers, we are petitioning to be allowed to increase the hourly fee rate from $25.00 to $37.37, which is the hourly rate of IT Officer. Based on the Department’s petition, I find the Department has met its burden to explain how, given the nature of the responsive records, 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). I find the Department may assess a fee limited to $37.37 per hour for the tasks described above. Conclusion Accordingly, the Department may assess a fee limited to $37.37 per hour. Please note, the requestor 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(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Rg Creation