Taeho Kim v. Lakeville Police Department (SPR 20201075)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 9, 2020 SPR20/1075 Kristen Campbell Records Access Officer Lakeville Police Department 323 Bedford Street Lakeville, MA 02347 Dear Ms. Campbell: I have received your petition on behalf of the Lakeville Police Department (Department) requesting an extension of time to produce records, as well as a waiver of statutory limits on fees that may be assessed in responding to a request. G. L. c. 66, § 10(c); G. L. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On June 22, 2020, Taeho Kim made a modified request for three categories of records related to “incident level,” including use of force, civilian complaints, and 911 calls. Petitions for an extension of time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. 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

Kristen Campbell SPR20/1075 Page 2 July 9, 2020 G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. - The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). In its July 2, 2020 petition, the Department is “requesting an extension of time to furnish copies of the requested records in excess of the time permitted in Section 10(b) of Chapter 66 of the General Laws.” The Department states “[w]e cannot complete the request within 10 business days following our initial receipt because the request unduly burdens the other responsibilities of our department due to the magnitude or difficultly of [the] request…” The Department explains in its response to the requestor “the department does not have all of this information in electronic format therefore it needs to be searched by hand and creates an unduly burden on the department and other responsibilities that are required by the only Adminstrative Assistant employed by the department.” The Department notes it “will require an extension and modification within 25 business days following the intitial receipt…” of the request. The Department also notes they are willing to work with the requestor to modify and narrow the request. The Department estimates it will take 6 hours to complete part one of the request, 20 hours to complete part two, and 10,218 hours to complete part three. In regard to part three, the Department explains “each individual call must be listened to in order to comply with your request. The statistical data is not in electronic format…[e]stimated 20,436 calls in total, 30 minutes to listen to call and document date, type and reason for call per your request.” Please be advised, under the Public Records Law the Department is not required to create a record in response to a public records request. See G. L. c. 66, §6A(d). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § 10( a)(ii). I find that in light of the need to search for the records, and the capacity of the Department to produce the request without the extension, the Department has established good cause to permit an extension of time. G. L.c. 66, § 10(c)(i)-(ii). I hereby grant the Department an extension of 30 business days beyond the time allowed in G. L. c. 66, § 10(b)(vi) (a municipality may provide a timeframe not to exceed 25 business days to produce responsive records).

Kristen Campbell SPR20/1075 Page 3 July 9, 2020 Petition to Assess Fees 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 (Supervisor) 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). 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. 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 determination 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; 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 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 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).

Kristen Campbell SPR20/1075 Page 4 July 9, 2020 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). In its July 2nd petition, the Department requests “permission to charge the following fees associated with the search and segregation of the requested records.” The Department asserts that “[t]he lowest paid employee who has the necessary skill to complete the search and segregation is the Adminstrative Assistant whose normal hourly rate is $26.10. This is due to the fact that she is the only secretary for the department.” The Department states “it will take approximately 10,244 hours of search and segregation time…” The Department notes “[t]he total number of hours we intend to charge for are 10,242” totaling $256,050.00. In its response to the requestor, the Department indicates “[t]he total number of hours charged will be at $25.00 per hr.” Please be advised segregation is defined as the time used to review records to determine what portions are subject to redaction or withholding under M.G.L. c. 4, § 7, clause Twenty-sixth or other legally applicable privileges. 950 C.M.R. 32.02. In light of the above, I find the Department has not met its burden to explain how the request cannot not be prudently completed without segregation. Conclusion Accordingly, I find the Department has established good cause for a time extension of 20 business days as described above. However, permission to charge for time spent segregating responsive records cannot be granted at this time. 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(d)(iv)(4), 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Taeho Kim