Kathie Ellis, Esq. v. Framingham, City of - Mayor's Office (SPR 20170596)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 8, 2017 SPR17/596 Nichol M. Figueiredo Records Access Officer Town of Framingham 150 Concord Street Framingham, MA 01702 Dear Ms. Figueiredo: I have received your petition on behalf ofthe Town of Framingham (Town) requesting to charge more than $25 an hour in responding to a requests made by Kathie Ellis of Ellis & Associates. G. L. c. 66, § 10(d)(iv). As required by law, the municipality furnished a copy of this petition to the requestor on May 2, 2017. G. L. c. 66, § 10(d)(iv)(2). Petitions 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, ifthe 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). 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) 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

Nichol M. Figueiredo SPR17/596 Page2 May 8, 2017 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. Current petition In its May 2, 2017 petition the Town indicates that the Police Department "receives requests for public records on a weekly basis from Kathie Ellis of Ellis & Associates for copies of motor vehicle crash reports for commercial use." You provided examples of Ms. Ellis's requests for all motor vehicle accidents reports for multiple week-long periods. You further explain that " [d ]ue to the large number of reports, the time spent segregating and redacting the reports is approximately three (3) hours by the Police Department's Records Manager Marilia Martins." With respect to the hourly rate seeking to be charged, you explain "Marilia's hourly rate is $29.95 per hour, pursuant to 950 CMR 32.06(4)(h) we are requesting permission to charge a fee in excess of the maximum hourly rate of $25.00 per hour for the time spent segregating and redacting the reports over the two hour threshold at $29.95 per hour." The term "commercial purpose" as used in this section shall mean: the sale or resale of any portion of the public record or the use of information from the public record to advance the requester's strategic business interests in a manner that the requester can reasonably expect to make a profit, and shall not include gathering or reporting news or gathering information to promote citizen oversight or further the understanding of the operation or activities of government or for academic, scientific, journalistic or public research or education. G. L. c. 66, § 10(d)(ix). I understand Ellis & Associates is a law firm specializing in personal injury, workers compensation and social security. It is my determination that the requests are made for a commercial purpose. Further, in a May 2, 2017 email Ms. Ellis explains "[w]e have no problem paying for the copies of the motor vehicle reports." Conclusion Based on Ms. Ellis's May 2nd email and my finding that the requests are for a commercial purpose, I approve the Town's petition to charge in excess of $25 an hour for the provision of the motor vehicle accident reports sought by Ellis & Associates. However, this approval is limited to the rate of $29.95 and may only be assessed for the time spent in excess of the first two hours of employee time. See G. L. c. 66, § 10 ( d)(iii) (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).

Nichol M. Figueiredo SPR17/596 Page 3 May 8, 2017 Please note the requester 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, § lOA( c). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Kathie Ellis