Ella Costa v. Norwood, Town of - Police Department (SPR 20222151)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 27, 2022 SPR22/2151 Officer Mario Costa Chief Clerk Norwood Police Department 137 Nahatan Street Norwood, MA 02062 Dear Officer Mario Costa: I have received your petition on behalf of the Norwood Police Department (Department), seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On September 15, 2022, Ella Costa, of Chiro Center of Norwood, requested “all motor vehicle accident reports filed in [the Department’s] jurisdiction” for a specified time period. Petitions for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. 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

Officer Mario Costa SPR22/2151 Page 2 September 27, 2022 G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Request for Additional Time to Produce Responsive Records In its September 20, 2022 petition, the Department states that the current request “is a weekly request that [the Department was informed would continue in perpetuity.” The Department estimates the request “will take will take approximately three hours to complete.” Based on an email from the Department to this office on September 27, 2022, I understand the Department is seeking an extension of 1 to 2 business days. I find that in light of the capacity of the Department to produce the request without the extension the Department has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). The Department is granted an extension of 2 business days. Please note the time may begin to run once the Department receives payment. G. L. c. 66, § 10(c). Petition to Assess Fees – Municipalities 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. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). As discussed below, it is my determination that this request was made for a commercial purpose.

Officer Mario Costa SPR22/2151 Page 3 September 27, 2022 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 2 (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). Current Petition In its September 20, 2022 petition, the Department states that it is seeking to assess fees for segregation and redaction, and contends that the request is for a commercial purpose. The Department provides the following information: This is a weekly request that [the Department was] informed would continue in perpetuity. Based on [the Department’s] experience with other records requests of this type, this appeared to be for a commercial purpose to either seek out new clients or establish a list of potential clients for the Chiro Center. The Chiro Center confirmed it was for commercial purposes. The request is for “marketing purposes.” Included in [the] petition, is both the weekly request [the Department] received and a copy of the form letter that the Chiro Center intends to mail to the involved parties to advertise services. Based on the fact that the letter is soliciting involved persons for massage services as a result of obtaining data from [Department] records, [the Department] believe[s] that their objective is

Officer Mario Costa SPR22/2151 Page 4 September 27, 2022 to advance the requester’s strategic business interests and is therefore a commercial purpose. Please note, the term “commercial purpose,” as used in the Public Records Law, 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). In light of the Department’s September 20th petition and the correspondence provided, it is my understanding that the request made by Ms. Costa 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 request is for a commercial purpose, I approve the Department’s petition to charge for time spent segregating and redacting responsive records. See G. L. c. 66, § 10(d)(iv). Please note, 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, the Department is granted an extension of 2 business days. Please note the time may begin to run once the Department receives payment. G. L. c. 66, § 10(c). Please note, Ms. Costa 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, §§ 10(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Ella Costa