Daniel Ochoa v. Southborough, Town of - Police Department (SPR 20202619)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 5, 2021 SPR20/2619 Lieutenant Ryan M. Newell Southborough Police Department 32 Cordaville Road Southborough, MA 01772 Dear Lt. Ryan Newell: I have received your petition on behalf of the Southborough Police Department (Department) seeking an extension of time to furnish copies of a requested record, or any portion thereof, as well as to charge $25 in responding to a request made by Daniel Ochoa of Legal Plex LLC. G. L. c. 66, § 10(d)(iv). As required by law, a municipality must furnish a copy of its petition to the requestor. Id. In this matter, Mr. Ochoa requested “copies of the Motor Vehicle Accident Reports and Records that have happened on the dates 12/21/2020 - 12/27/2020.” 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, 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 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) 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

Lieutenant Ryan M. Newell SPR20/2619 Page 2 January 5, 2021 and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Current Petition In your December 31, 2020 petition to this office you expressed that the Department seeks a “time extension and an assessment of fees for the attached records request from the company ‘Legal Plex.” You also state, “[t]he law office confirmed it was for commercial purposes in their request letter. Included in our petition, is both the public record requests we have received, and a copy of the law office’s website which shows that they intend to advertise legal services with acquired crash reports.” Your petition notes, “[i]t is estimated that the entire process will take approximately three hours to complete for the attached request with a cost of $25 per hour for the one employee involved in this assignment.” 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). Based on the Department’s December 31, 2020 petition and the correspondence provided, it is my understanding that the requests made by Daniel Ochoa meet the statutory definition of “commercial purpose” within the Public Records Law. See G. L. c. 66, § l0(d)(ix); -se-e- a-ls-o SPR18/1318 Determination of the Supervisor of Records (September 5, 2018). 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 $25 an hour to produce the responsive documents. Please be advised, 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. See G. L. c. 66, § 10(d)(iii). Further, in light of the Department’s December 31st petition for a time extension, I decline to opine on the Department’s petition as the requestor has not agreed to pay the estimated fee for the provision of responsive records. If after hearing from Mr. Ochoa regarding an acceptance of the estimate the Department still requires an extension of time to comply with the

Lieutenant Ryan M. Newell SPR20/2619 Page 3 January 5, 2021 request, the Department may file a subsequent petition. See G. L. c. 66, § 10(c); 950 C.M.R. 32.06(4)(g). Please note, the requestor 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, § 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Daniel Ochoa