Daniel Ochoa v. Ayer, Town of - Police Department (SPR 20202224)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 23, 2020 SPR20/2224 Heather Sherry Office Manager Ayer Police Department 54 Park Street Ayer, MA 01432 Dear Ms. Sherry: I have received your petition on behalf of the Spencer Police Department (Department) requesting permission to charge for time spent segregating or redacting responsive records under G. L. 66, § 10(d)(iv). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor. Id. On November 6, 2020, Daniel Ochoa requested “…copies of the accident records that have happened on the dates 10/25/2020 - 11/06/2020 and on a weekly basis.” Petitions to Assess Fees 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). 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

Heather Sherry SPR20/2224 Page 2 November 23, 2020 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 16, 2020 petition, the Department requests it “be allowed to assess a fee for the time our Records Clerk need to search, redact, and reproduce the records requested by Legal Plex.” The Department indicates “[b]ased on our experience with other records requests of this type, this appeared to be for a commercial purpose to either seek out new clients or establish a list of potential clients for the marketing agency. Legal Plex confirmed through its email request it was for commercial purposes, ‘gathering data on behalf of vehicle history companies and insurance companies’. Legal Plex's website (legalplex.com) further explains that it is a full- service inbound marketing agency with thousands of attorney-clients across the country…[w]e believe that their objective is to advance the requester's strategic business interests and is therefore a commercial purpose as defined in the excerpt from the public records law…” 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 find that the request for weekly accident reports is intended to advance the requestor’s strategic business interests. Consequently, this purpose meets the statutory definition of “commercial purpose” within the Public Records Law. See G. L. c. 66, § 10(d)(ix); see also SPR18/1318 Determination of the Supervisor of Records (September 5, 2018); SPR20/0304 Determination of the Supervisor of Records (February 24, 2020). Conclusion Based on the Department’s petition and my finding that the requests are for a commercial purpose, I approve the Department's petition to charge fees for segregation and redaction. Mr. Ochoa may seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10(c), 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Daniel Ochoa