Daniel Ochoa v. Cambridge, City of - Law Department (SPR 20211603)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 1, 2021 SPR21/1603 Seah Levy Public Records Access Officer City of Cambridge 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received your petition on behalf of the City of Cambridge (City) requesting permission to charge for time spent segregating or redacting responsive records under G. L. 66, § 10(d)(iv). As required by law, it is my understanding that the City furnished a copy of this petition to the requestor, Daniel Ochoa. On June 14, 2021, Mr. Ochoa requested “…copies of the Motor Vehicle Accident Reports and Records that have happened on the dates 06/07/2021 - 06/13/2021.” Petitions 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 a municipality’s petition to allow the municipality 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). 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) 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

Seah Levy SPR21/1603 Page 2 July 1, 2021 if the fee is necessary such that the request could not have been prudently completed without the 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 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) 2 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). Current Petition In its petition dated June 28, 2021, the City seeks “…a waiver of the statutory limits on fees that may be assessed in responding to requests from the Company or Companies known as VIN Safety and Legal Plex, and the individual known as Daniel Ochoa, for motor vehicle accident reports.” The City notes, “VIN Safety claims to be a ‘Vehicle History & Underwriting’ company on its website, while Legal Plex offers Direct Mail Marketing on the subjects of: Personal Injury, Criminal Leads, Small Claims Leads, and other areas. Mr. Ochoa has stated in his requests that Vin Safety is ‘a company that gathers data on behalf of vehicle history companies and insurance companies,’ and previously used identical language in his requests regarding Legal Plex. Based on the information available to the City, we believe that these records are being collected and collated for a commercial purpose, and the data is resold to clients of VIN Safety and Legal Plex.”

Seah Levy SPR21/1603 Page 3 July 1, 2021 The City asserts “…that given the actual hourly rates of the staff members conducting this work, the City has currently spent approximately $6,364 in hourly wages fulfilling requests from this requester. The City anticipates that these requests will continue, and that at a rate of $25 an hour, the statutory cumulative waived fees on such requests would be in the amount of $2,600 over a one year period.” 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 City’s June 28th petition and the correspondence provided, it is my understanding that the requests made by Mr. Ochoa meet 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). Conclusion Based on the City’s petition and my finding that this request is for a commercial purpose, I approve the City’s petition to charge $25.00 an hour to produce the responsive documents. Please note, the Mr. Ochoa 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