Richard Rakoski v. Lakeville Police Department (SPR 20212884)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 8, 2021 SPR21/2884 Kristin Campbell Lakeville Police Department 323 Bedford Street Lakeville, MA 02347 Dear Kristin Campell, On November 1, 2021, I received your petition on behalf of the Lakeville Police Department (Department) seeking permission to charge for time spent segregating or redacting responsive records as well as a waiver of statutory limits on fees that may be assessed in responding to the requests. G. L. c. 66, § 10(c), (d)(iv). As required by law, the Department furnished a copy of its petition to the requestor, Richard Rakoski. Id. On October 25, 2021, Mr. Rakoski requested various categories of records concerning his involment with the Department. Petitions 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). 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 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

Kristin Campbell SPR21/2884 Page 2 November 8, 2021 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). 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). Current Petition In its November 1st pettion, the Department states, “…we are requesting permission to charge the following fees associated with the search and segregation of the requested records.” The Department notes, “[t]he requested records include the following 11 years worth of any and all reports involving Mr. Rakoski. The lowest paid employee who has the necessary skill to complete the search and segregation of these records is Kristen Campbell, Administrative Assistant. This is due to the fact that she is the only one trained in public records and has been certified. The Administrative Assistant’s normal hourly rate is $27.36. Additionally, due to the request for audio and video recordings the only employee that has the necessary skill required to copy these recordings is Lt. Steven Leanues and his hourly rate is $49.62.” The Department “…estimates that it will take 34 hours of time to search for, print (the reports cannot be emailed without printing first), compile, segregate, redact and/or reproduce the requested records; and the segregation or redaction of records is required by law or the fee has

Kristin Campbell SPR21/2884 Page 3 November 8, 2021 been approved by the Supervisor of Public Records.” The Department contends that “…the request represents an actual and good faith representation to comply with the request, the fee is necessary, the amount of the fee is reasonable and the fee is not designed to limit, deter or prevent access to requested public records.” The Department notes, “[t]his is based upon the following: the request is made for an all-inclusive time period of eleven years worth of incidents, audio and video recordings.” Although the Department estimates it “…will take 34 hours of time to search for, print (the reports cannot be emailed without printing first), compile, segregate, redact and/or reproduce the requested record,” it has not provided information regarding why such records are likely to contain exempt information. Conclusion I find the Department has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Please note, however, this does not preclude the Department from charging for segregation and redaction that is required by law at Lt. Leanues’s hourly rate of $49.62 and Ms. Campbell’s hourly rate of $27.36. Further, this office encourages Mr. Rakoski and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii). 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 Mr. Rakoski within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Please note, Mr. Rakoski 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: Richard Rakoski