Richard Rakoski v. Lakeville Police Department (SPR 20232724)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 16, 2023 SPR23/2724 Kristen Campbell Administrative Assistant Lakeville Police Department 323 Bedford Street Lakeville, MA 02347 Dear Ms. Campbell: On November 9, 2023, this office received your petition on behalf of the Lakeville Police Department (Department) seeking permission to charge for time spent segregating or redacting responsive records and a waiver of statutory limits on fees that may be assessed in responding to the request. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, it is my understanding that the Department furnished a copy of the petition to the requestor, Richard Rakoski. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On November 3, 2023, Mr. Rakoski requested “…all records and documents to include all lawsuits against the town settled and pending against the Lakeville Police Department for the past 10 years.” Petition to assess fees – Municipalities The 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 or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). 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 SPR23/2724 Page 2 November 16, 2023 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). Municipalities may not assess a fee for the first 2 (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). Current Petition In its petition, the Department requests to charge an hourly rate of $70.80 for “search and segregation of the requested records.” The Department states the following in support of its request: [T]he requested records include the following 10 years worth of records containing lawsuits against the Town settled and pending for the Police Department. … [T]he lowest paid employee who has the necessary skill to complete the search and segregation of these records is the Chief of Police. This is due to the fact that the records are in his control in a locked office with no unauthorized access to

Kristen Campbell SPR23/2724 Page 3 November 16, 2023 employees and/if he has knowledge of the contents of any such reports. The Chief of Police’s normal hourly rate is $70.80. … In order to comply with [Mr. Rakoski’s] request, it will take approximately 30 hours of search and segregation time, based upon the following: to search for and locate any lawsuits brought against the police department in the past 10 years, search for any portions of the report that should be redacted due to any protections of the attorney-client privilege…the total number of hours that [the Department] intend to charge for are 30 hours. Please be advised, records custodians may assess fees for time spent segregating or redacting records where such segregation or redaction is required by law. See 950 C.M.R. 32.07(2)(d) (stating that fee for segregation or redaction is permissible when approved by Supervisor or when required by law (emphasis added)). Where the Department only seeks to assess fees pursuant to attorney-client privilege, which is required by law, I find it unnecessary to opine on whether the Department may assess fees for segregating and redacting the records. Conclusion Based on the Department’s petition, I find that the Department has not met its burden to assess fees in excess of $25.00 per hour. Further, this office encourages the Department and Mr. Rakoski to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii)(a municipality or agency 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 or agency to produce records sought more efficiently and affordably). 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). Sincerely, Manza Arthur Supervisor of Records cc: Richard Rakoski