Richard Rakoski v. Lakeville Police Department (SPR 20232662)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 8, 2023 SPR23/2662 Kristen Campbell Records Access Officer Lakeville Police Department 323 Bedford Street Lakeville, MA 02347 Dear Ms. Campbell: On November 3, 2023, this office received your petition on behalf of the Lakeville Police Department (Department) seeking a waiver of statutory limits on fees that may be assessed in responding to the request. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). On November 2, 2023, Richard Rakoski requested, “all records for the month of October containing [Lakeview] police vehicles used for details: to include billing and receiving funds, also to include time in and out of dispatch, records for the vehicles and the officers using [the] vehicles, and their time in and out, also included mileage.” Petition to Assess Fees The Supervisor of Records (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. 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 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 SPR23/2662 Page 2 November 8, 2023 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 3rd petition, the Department states the following in support of a waiver of statutory limits on fees, “[the Department] will be required to search and separate the details worked in the month of October that used a cruiser and the ones where a cruiser was not requested, search invoices that charged for the use of a cruiser vs. the details that did not require the use of a cruiser, segregate portions of the payments to Treasurer for payments of details that required a cruiser vs. details that did not require a cruiser. All of these records are not separate from one another where a cruiser is requested or not. In order to fulfill the request made by the requestor this will take an estimated 4 hours to perform.” Additionally, the Department states, “[t]he lowest paid employee who has the necessary skill to complete the search and segregation is the Administrative Assistant whose normal hourly

Kristen Campbell SPR23/2662 Page 3 November 8, 2023 rate is $28.95. This is due to the fact that [the] Administrative Assistant does the billing for details and submits the payments for these details to the Treasurer.” Conclusion In light of the factors in G. L. c. 66, § 10(d)(iv), I find the Department may charge the Department employee’s hourly rate of $28.95 per hour for the detailed tasks. G. L. c. 66, § 10(d)(iii). Further, this office encourages the requestor and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii). 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), l0A(c). Sincerely, Manza Arthur Supervisor of Records cc: Richard Rakoski