Kelly A. Jarvis v. Brookline, Town of - Police Department (SPR 20250218)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 31, 2025 SPR25/0218 Amanda Williams Records Clerk Brookline Police Department 350 Washington Street Brookline, MA 02445 Dear Ms. Williams: On January 24, 2025, this office received your petition on behalf of the Brookline Police Department (Department) requesting a waiver of statutory limits to fees that may be assessed in responding to the request. 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, Kelly A. Jarvis, of McCoy Leavitt Laskey, LLC. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On January 13, 2025, Ms. Jarvis requested the following records: [1] All reports and run sheets relating to any responses to [identified address] on December 26, 2024[;] [2] All photographs and video, including body camera video, taken in relation to any responses to [identified address] on December 26, 2024[;] [3] All investigative reports, memoranda, notes and correspondence relating to any incidents occurring at [identified address] on December 26, 2024[;] [4] Transcripts and audio recordings relating to any 9-1-1 calls or radio communications relating to any incidents occurring at [identified address] on December 26, 2024[;] [5] All dispatch call log records relating to any incidents occurring at [identified address] on December 26, 2024[;] [6] All interviews, written statements, video and audio recordings taken in relation to any responses to [identified address] on December 26, 2024[;] 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 SPR25/0218 Page 2 January 31, 2025 [7] The names of all emergency, police, sheriff, fire marshal, fire departments and any other governmental entity that responded to [identified address] on December 26, 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. 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

Amanda Williams SPR25/0218 Page 3 January 31, 2025 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 is seeking approval “to increase the hourly fee rate from $25.00 to $37.37.” In support of its request, the Department provides the following information: [T]he files that are requested are body worn camera digital files and audio 911 files/radio communications, which contain a mix of public and private information. These files are confidential and maintained separately from other files within our department. . . . [T]he 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 in the ability to conduct effective investigations, the ability to provide effective law enforcement, as well as provide transparency. 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. Conclusion Based on the Department’s January 24th petition, I find the Department has 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). The Department may assess a fee limited to $37.37 per hour. Further, this office encourages Ms. Jarvis and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality or agency shall suggest a reasonable modification of the scope of the

Amanda Williams SPR25/0218 Page 4 January 31, 2025 request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality or agency to produce records sought more efficiently and affordably). When preparing a fee estimate for the provision of the requested records, the Department 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 Department must provide a response to Ms. Jarvis 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: Kelly A. Jarvis