Daniel Ochoa v. Ashby, Town of - Police Department (SPR 20202396)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 10, 2020 SPR20/2396 Fred Alden Chief of Police Ashby Police Department 893 Main St Ashby, MA 01431 Dear Chief Alden: I have received your petition on behalf of the Ashby Police Department (Department) requesting a waiver of statutory limits on fees that may be assessed in responding to the requests. 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. Specifically, on November 30, 2020, Daniel Ochoa requested “…copies of the Motor Vehicle Accident Reports and Records that have happened on the dates 11/23/2020 – 11/29/2020.” 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

Chief Fred Alden SPR20/2396 Page 2 December 10, 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 December 3, 2020 petition, the Department requests “authorization for the assessment of fees for the attached reoccurring records request which is provided on a weekly basis from Daniel Ochoa of Legal Plex.” The Department requests it “be permitted to charge a fee of $6.00 per crash report which is provided to the requester.” The Department indicates “[t]his fee is based upon the following estimation; the employee who will be assigned the task of compiling, segregating, redacting and producing the records, their rate is $24.82 per hour. The average crash report is estimated to take fifteen (15) minutes to process and thus, the fee of $6.00 per crash report is requested.” The Department indicates “[t]he initial request for records specified a date range and continues to indicate ‘and on a weekly basis.’ With no end date provided or suggested. Based upon information I have received from other police departments in the Commonwealth, they have also received the same request in the same formatting seeking crash reports on a weekly basis.” The Department explains “[e]ach request specifically states: ‘I am a representative of Legal Plex which is a company that gather data on behalf of vehicle history companies and insurance companies.’ A public search of the company via the internet reveals a website…which describes their offered services and directly states: ‘LegalPlex is a full-service inbound marketing agency with 1000’s of attorney-clients across the country. Our complementary software allows you to maintain complete control and visibility over all of your marketing campaigns. Learn why 97% of our clients continue to use our services year after year.’…I believe the records requests in perpetuity, pursuant to MGL C.66/S.10, are for the purposes of commercial purposes and in the strategic interest of promotion of business.” 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); SPR20/2224 Determination of the Supervisor of Records (November 23, 2020); SPR20/2223 Determination of the Supervisor of Records (November 23, 2020).

Chief Fred Alden SPR20/2396 Page 3 December 10, 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