Jennifer Lakin v. Southbridge Police Department (SPR 20220008)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 6, 2022 SPR22/0008 Officer Gerald Arvelo Records Access Officer Southbridge Police Department One Mechanic Street Southbridge, MA 01550 Dear Officer Arvelo: I have received your petition on behalf of the Southbridge Police Department (Department) requesting permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On September 21, 2021, Jennifer 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. Previous Appeal This request was the subject of a previous appeal. See SPR21/3060 Supervisor of Records Determination (December 1, 2021). In my December 1st determination, I ordered the Department to provide further details regarding its fee estimate, and to demonstrate whether it provided a response within 10 business days. Subsequently, the Department petitioned this office requesting permission to charge for time spent segregating or redacting responsive records, and this case was opened as a result. 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 SPR22/0008 Page 2 January 6, 2022 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). 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).

Officer Gerald Arvelo SPR22/0008 Page 3 January 6, 2022 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 an email to the Department and this office on January 4, 2022, Ms. Lakin modified the scope of her request. Where the Department’s petition was based on the September 21st request, and in light of Ms. Lakin’s modified January 4th request, I find it is unnecessary to address the Department’s petition requesting permission to charge for time spent segregating or redacting responsive records. This office encourages Ms. Lakin 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 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 agency to produce records sought more efficiently and affordably). Any subsequent fee estimate from the Department must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Conclusion Accordingly, the Department is to provide Ms. Lakin with a response to the modified January 4th request in accordance with the Public Records Law and its Access Regulations within ten business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Ms. Lakin may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Jennifer Lakin