Daniel Ochoa v. Department of State Police - Office of the Chief Legal Counsel (SPR 20211031)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 26, 2021 SPR21/1031 Keith A. Paquette, Esq. Legal Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Paquette: I have received your petition on behalf of the Department of State Police (Department) seeking permission to charge for time spent segregating or redacting responsive records under G. L. c. 66, § 10(d)(iv). As required by law, an agency must furnish a copy of its petition to the requestor. Id. On April 9, 2021, Daniel Ochoa of Legal Plex LLC requested “… copies of Motor Vehicle Accident Reports reported to the State Police in the year of 2020 and 2021 YTD.” Petition to Assess Fees 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 (Supervisor) 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). 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 an agency’s petition to allow the agency to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the agency 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

Keith A. Paquette, Esq. SPR21/1031 Page 2 April 26, 2021 redaction or segregation; 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. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates An agency 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). Agencies may not assess a fee for the first four hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii). Where appropriate, agencies 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. 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)(ii); 950 C.M.R. 32.06(4). Current Petition In its April 22, 2021 petition, the Department indicates it “. . . is seeking the permission of the Supervisor of Records to assess a reasonable fee for the production of records in accordance with M.G.L c. 66, § 10(d)(ii) and 950 CMR 32.07(2).” Further, “[t]he Department in good faith believes that this request is not in the public interest and is for a commercial purpose as the request was submitted by Legal Plex LLC, which is a marketing agency who is in the business of marketing attorney’s across the country.” In regards to the segregation and redaction of the requested records, the Department states that “[a]s a state agency with the responsibility for maintaining extensive confidential information, the Department has an obligation to ensure proper procedures are maintained to prevent the dissemination of information that is protected from disclosure by law and the public records statute. Fulfilling such an obligation requires a careful review and segregation of records intended for disclosure. Based on the nature of the requested records, the Department reasonably believes that they contain information that will be redacted pursuant to M.G.L. c. 4, § 7, cl. 26(a), M.G.L. c. 4, § 7, cl. 26(c), M.G.L. c. 4, § 7, cl. 26(f), and M.G.L. c. 4, § 7, cl. 26(o).”

Keith A. Paquette, Esq. SPR21/1031 Page 3 April 26, 2021 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 April 22nd petition and the correspondence provided, it is my understanding that the request made by Mr. Ochoa meets the statutory definition of “commercial purpose” within the Public Records Law. See G. L. c. 66, § l0(d)(ix); see also SPR20/2599 Determination of the Supervisor of Records (January 5, 2021). 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: Mr. Daniel Ochoa