Daniel Ochoa v. Townsend, Town of - Police Department (SPR 20202226)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 23, 2020 SPR20/2226 Maurice Furlong Townsend Police Department 70 Brookline Road Townsend, MA 01469 Dear Ms. Furlong: I have received your petition on behalf of the Townsend Police Department (Department) seeking permission to charge $17.26 per hour in responding to a request made by Daniel Ochoa of Legal Plex. G. L. c. 66, § 10(c), (d)(iv). As required by law, it is my understanding that the Department furnished a copy of their petition to the requestor. Id. Specifically, Mr. Ochoa requested “. . . copies of the accident records that have happened on the dates 10/25/2020 - 10/31/2020 and on a weekly basis.” Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from an agency 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 agency 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) 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; 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

Maurice Furlong SPR20/2226 Page 2 November 23, 2020 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 petition dated November 16, 2020, the Department states that it seeks permission to assess fees for the requested records. The Department explains that “[u]pon speaking with Legal Plex it appears their request is commercial based. . . . This is an ongoing weekly request that will continue indefinitely. We believe this weekly request is for ‘marketing purposes’ to be used for commercial purposes as defined in [G. L. c. 66, § 10(d)(ix)].” The Department further requests that it “. . . be allowed to assess a fee for the time needed for [its] records clerk to search, redact and reproduce the records requested by Legal Plex. The cost per hour will be $17.26 for a two hour minimum as well as a per page charge of .05$ per page.” 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, §

Maurice Furlong SPR20/2226 Page 3 November 23, 2020 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 of the records. 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