Daniel Ochoa v. Orange, Town of - Police Department (SPR 20202277)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 23, 2020 SPR20/2277 James Sullivan Chief of Police Orange Police Department 400 East River Street Orange, MA 01364 Dear Chief Sullivan: I have received your petition on behalf of the Orange Police Department (Department) seeking permission to charge $24.16 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 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

Chief James Sullivan SPR20/2277 Page 2 November 23, 2020 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 petition dated November 16, 2020, the Department explains that “[t]his is a weekly request that we were informed would continue in perpetuity. Based upon our experience with requests of this type, this appears to be for a commercial purpose. The requestor informs us that it is his intention to gather the data [on] ‘behalf of vehicle history companies and insurance companies’. It is the belief of this department that this requestor is seeking to advance their strategic business interests by compiling the data for other commercial purposes.” The Department explains that “[t]he requestor is a marketing agency whose purpose is to establish data bases geared toward an attorney’s ability to reach potential new clients using crash data gathered from departments. . . .” The Department requests that it be allowed “. . . to assess a fee for the time needed of our Administrative Assistant to search, redact and reproduce the records. We are estimating that this process should take approximately three hours each week. The hourly rate of the Administrative Assistant, the lowest paid employee qualified to perform this task is $24.16 hr.” The term “commercial purpose” as used in this section shall mean: the sale or resale of

Chief James Sullivan SPR20/2277 Page 3 November 23, 2020 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: David Ochoa