Lucas Newbill v. Brockton, City of - Police Department (SPR 20243404)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 27, 2024 SPR24/3404 Lieutenant William Carpenter Bureau of Professional Standards Brockton Police Department 7 Commercial Street Brockton, MA 02302 Dear Lieutenant Carpenter: On December 20, 2024, this office received your petition on behalf of the Brockton Police Department (Department) seeking permission to waive statutory limits to fees and to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, it is my understanding that the Department furnished a copy of the petition to the requestor, Lucas Newbill, Esq. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On December 10, 2024, Attorney Newbill requested “[a]ll documents, communications, and electronically stored information concerning Internal Affairs Investigation #23-13-IA, including but not limited to the audio of the interviews referenced in the final report.” 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 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

William Carpenter SPR24/3404 Page 2 December 27, 2024 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. 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). Petition to Assess Fees In its petition, the Department requests to charge fees for segregation and redaction of the responsive records, and states, “[i]n order to comply with the request, we will be required to segregate and make certain redactions to the requested records in accordance with the Public Records Law. Responsive information is necessary to be redacted pursuant to applicable exemptions, including A, B, C, and F.” Subsequently, in a letter to this office on December 26, 2024, the Department provides the following additional information:

William Carpenter SPR24/3404 Page 2 December 27, 2024 In order to comply with the public records request, we will be required to segregate and make certain redactions to the requested records in accordance with the Public Records Law. All of the approximately 300 emails, 260 minutes of audio recordings, and a 165 page report of the responsive record would have to be segregated and the necessary information would need to be redacted pursuant to applicable exemptions, including, but not limited to A, B, C, and F. The entire responsive record has not been thoroughly reviewed. However, a cursory overview was completed to determine the records length and possible exemptions which may apply. Exemption (a): In particular, G.L. c. 66, section 10B advises that the home address, telephone number and personal email address of law enforcement, judicial, prosecutorial, department of youth services, department of children and families, department of correction and any other public safety and criminal justice system personnel, and of unelected general court personnel shall not be public records. The records requested contain the home address of a law enforcement officer and would need to be redacted per G.L. c. 66, section 10B. It may also contain a law enforcement officer’s personal email address, mobile telephone number, and/or home telephone number. Segregation of the records would be required to ensure proper redaction is conducted in accordance with G.L. c 66, section 10B. Exemption (b): The responsive records sought may contain information regarding internal personnel practices, at the Brockton Police Department’s Bureau of Professional Standards because they provide a roadmap for the composition and structure of the particular Bureau. The Bureau makes difficult decisions regarding a host of issues that give rise to aggrieved members of the public who may be personally invested in the results of a particular matter. Because the Bureau often represents the public interest on difficult – and sometimes sensitive – issues, it is especially important to keep unsolicited communications with staff handling such matters to a minimum and on point, before, during, and after the Bureau’s investigation. Accordingly, the disclosure of the names and/or e-mail addresses of any or all of the Bureau’s staff would inhibit the ‘proper performance of necessary government functions’ by interfering with the overall operations of the office and the substantive work of the Bureau and by hindering the ability of the Bureau’s employees to carry out their duties effectively and without distraction, interruption, or harassment. We also state that in our experience, this harassment has sometimes escalated to threats towards those who are working/have worked on a particular matter. Exemption (c): The responsive records contain medical information of a specifically named individual who was a cooperating victim in a police investigation. The records requested contain information which, if disclosed, would constitute an unwarranted invasion of personal privacy. Such information

William Carpenter SPR24/3404 Page 2 December 27, 2024 contains intimate details and the privacy interests involved outweigh the public interests in the disclosure of that information. Exemption (f): This exemption applies to “investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” This exemption applies to such information, the disclosure of which would prejudice investigative efforts. In particular, confidential information which directly or indirectly identifies witnesses or informants. The records requested contain both victim and witness information, as well as their voluntary statements to law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Any information contained in a witness or victim statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness or victim is subject to withholding. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Based on the information provided in its fee 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 segregation or redaction. See G. L. c. 66, § 10(d)(iv). The Department is advised that the current language of Exemption (c) prohibits its application to records related to law enforcement misconduct investigations. See G. L. c. 4, § (26)(c). 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: The requested records include internal affairs investigative reports and exhibits, more than eleven hours of audio recordings of investigative interviews, and more than three hundred emails. All of these records may include information that is confidential, protected, or exempted. 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. Accordingly, no other employees are able to fulfill the aforesaid request.

William Carpenter SPR24/3404 Page 2 December 27, 2024 In order to make these redactions, we are required to devote more than 2 hours of time to search for, compile, segregate, redact and/or reproduce the requested records. It will take approximately twenty-four and three quarter (24.75) hours of segregation and redaction time, based upon the following: approximately three- hundred emails at two minutes per email, two-hundred sixty minutes of audio recordings at one-and-one half minutes per minute, and a one-hundred sixty five page internal affairs report at three minutes per page. The lowest paid employee with access to these confidential records who can perform the task required for this public records request, for the reasons stated above, is a Bureau of Professional Standards sergeant. The sergeant has a normal hourly compensation rate of $83.95. Based on 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). Conclusion Accordingly, to the extent the responsive records contain the exempt information as described above, the Department may assess a fee for segregation and redaction. However, I find the Department has not met its burden to assess fees in excess of $25.00 per hour. Further, I encourage the parties to communicate to enable the Department to provide records in an efficient and affordable manner. Please note, Attorney Newbill 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, §§ 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Lucas Newbill, Esq.