Douglas Snook v. Walpole, Town of - Police Department (SPR 20230292)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 21, 2023 SPR23/0292 Deanna Fruci Records Access Officer Walpole Police Department 50 South Street Walpole, MA 02081 Dear Ms. Fruci: On February 13, 2023, this office received your petition on behalf of the Walpole Police Department (Department) requesting permission to charge for time spent segregating and/or redacting responsive records. G. L. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). On February 6, 2023, Douglas K. Snook, Esq., of Snook Law Office, requested “copies of all Motor Vehicle Crash reports concerning any motor vehicle accidents which occurred in your jurisdiction from January 21, 2023 to January 28, 2023.” In emails dated February 15, 2023 and February 17, 2023, Christopher LoGrasso, of Snook Law Office, objected to the petition. 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 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 SPR23/0292 Page 2 February 21, 2023 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) 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 the Department’s petition dated February 13, 2023, the Department states: Snook Law Office will be requesting from the Walpole Police records department accident reports on a regular basis. Based on our experience with other record 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…. One of the requests has been previously completed and the documents have been sent to the law office. If the supervisor of records agrees that this is for commercial purpose, then I respectfully petition that the Walpole Police Department be allowed to assess a

Deanna Fruci SPR23/0292 Page 3 February 21, 2023 fee for the time needed of our records clerk to search, redact and reproduce the records requested by this law firm. It is estimated that the entire process will take approximately two to four hours to complete. Estimated cost of $25.00 per hour for one employees involved in the assignment. In a supplemental response dated February 17, 2023, the Department states: The requested information would need to be redacted. Mass. General Laws: Exemption C- Privacy personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy, M.G.L. c.4, §7 (26)(c) license numbers and date of birth are not public records. Medical information would also need to be redacted under privacy personnel and medical files. Also Exempt A, All Criminal Offender Record Information (“CORI”) (G.L. c. 4, § 7(26)(a); G.L. c. 6, §167A, 172) would need to be redacted. 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 February 13th petition and February 17th supplemental response, and the correspondence provided, it is my understanding that the request made by Attorney Snook meets the statutory definition of “commercial purpose” within the Public Records Laws. See G. L. c. 66, § 10(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 was for a commercial purpose, I approve the Department’s petition to charge for segregation and redaction when responding to this request. 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).

Deanna Fruci SPR23/0292 Page 4 February 21, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Douglas K. Snook, Esq. Christopher LoGrasso