Jennifer Lakin v. Southbridge, Town of - Police Department (SPR 20213060)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 1, 2021 SPR21/3060 Officer Gerald Arvelo Records Access Officer Southbridge Police Department 1 Mechanic Street Southbridge, MA 01550 Dear Officer Arvelo: I have received the petition of Jennifer Lakin appealing the response of the Southbridge Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 21, 2021, Ms. Lakin requested the following: 1. A document summarizing the calendar years 2017 and 2018: - the number of dogs and cats taken in or apprehended that includes - description of the animal (cat or dog) - the disposition of all dogs and cats (i.e. number of dogs and cats transferred, number of dogs and cats sold or adopted, number of dogs and cats euthanized). 2. Only in the case that a summary document is unavailable, a copy of all records with information required by M.G.L. c.140, §151A (except for personal information relating to the owner or new owner) for each individual dog and cat taken in or apprehended detailing the disposition of each dog and cat from September 1, 2019 to July 31, 2021. The Department responded to Ms. Lakin’s request, providing a fee estimate. Objecting to the fees, Ms. Lakin appealed, and this case was opened as a result. Fee Estimate – 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). 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

Officer Gerald Arvelo SPR21/3060 Page 2 December 1, 2021 Municipalities may not assess a fee for the first (two) 2 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). The Department’s Fee Estimate In its written fee estimate, the Department states the following: After performing a review of [the] request, it has been determined that in order to fulfill this request, a review of over 400 non-digitized pages must be manually completed. During this review any and all redactions allowed by exemptions to Massachusetts Public Records Laws will be completed and at which time the documents will be required to be scanned into digital format. In order to comply with [the] request, it will take approximately 40 hours of search and segregation time, based upon the following: 32 hours to review the timeframe in question to locate and reproduce all applicable case documents. 8 hours to ensure that all documents reproduced, does not contain any information that fall under Public Record Law Exemptions. Additionally, the Department indicates that it intends to charge $25 per hours, and states that “the lowest paid employee who has the necessary skill to complete the search and segregation of these records is [the] Animal Control Officer . . . whose normal hourly rate is $26.11.” Based on the Department’s response, it is unclear why it requires 32 hours to locate and reproduce the applicable records. The Department must provide further details regarding the tasks involved and what each task entails. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Additionally, the Department must explain whether the segregation and redaction is required by law. See G. L. c. 66, § 10(d)(ii) (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)).

Officer Gerald Arvelo SPR21/3060 Page 3 December 1, 2021 G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where Ms. Lakin submitted a public records request on September 21, 2021, and the Department’s fee estimate is undated, I find it is unclear whether the Department complied with G. L. c. 66, § 10(e). Specifically, the Department must demonstrate whether it provided a response to Ms. Lakin’s request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request. For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fee assessed is consistent with G. L. c. 66, § 10(d). Additionally, this office encourages Ms. Lakin and the Department to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce the records sought more efficiently and affordably). Conclusion Accordingly, the Department is ordered to provide Ms. Lakin with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Jennifer Lakin