Sydney Bushard v. Walpole, Town of - Police Department (SPR 20211191)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 18, 2021 SPR21/1191 Deanna Fruci Records Department Walpole Police Department 50 South Street Walpole, MA 02081 Dear Ms. Fruci: I have received your petition on behalf of the Walpole 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. Sydney Bushard of Kelly & Associates Injury Lawyers requested accident reports. 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after 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

Deanna Fruci SPR21/1191 Page 2 May 18, 2021 receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Current Petition In its May 12, 2021, petition the Department requests “an assessment of fees for record requests from Kelly & Associates Injury Lawyers.” The Department indicates, “Kelly & Associates Injury Lawyers will be requesting from the record department accident reports on a weekly basis. This is a weekly request that we were informed would continue perpetuity.” The Department explains “[b]ased on our experience with other records requests of this type, this appeared to be for commercial purpose to either seek out new clients or establish a list of potential clients for the law firm.” The Department notes “[t]he law firm did confirm that these requests we’re [sic] for commercial purposes and stated they we’re [sic] happy to pay a fee for these requests.” 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). 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. Ms. Buchard 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: Sydney Bushard