Brooks A. Ames v. Brookline, Town of - Office of the Town Counsel (SPR 20170424)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 31,2017 Patricia Correa, Esq. First Assistant Town Counsel Town of Brookline 333 Washington St., 6th Floor Brookline, MA 02445 Dear Attorney Correa: I have received your petition on behalf of the Town of Brookline (Town) to charge for time spent segregating or redacting public records responsive to a request dated January 13, 2017 by Brooks Ames, Esq. G. L. c. 66, § 10(d)(iv). As required by law, the Town furnished a copy of this petition to the requester. G. L. c. 66, § 10(d)(iv)(2). Specifically, Attorney Ames requested certain incident plans the Town has prepared in the past five (5) years. 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. Id. Analysis 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 or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. Id. 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 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

Patricia Correa, Esq. Page2 January 31, 2017 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. In the Town's January 26, 2017 petition you indicated the Town is seeking "to assess fees for segregation time expended in connection with" Attorney Ames's request. You explained there may be several responsive records and the Town may need to redact certain information within them under Exemption (n) of the Public Records Law. G. L. c. 4, § 7(26)(n). In subsequent correspondence between yourself and Attorney Ames, it appears Attorney Ames has narrowed his request. In an email dated January 27, 2017 you explain that in light of this correspondence "the Town withdraws its request for now. ..." Therefore, I will not opine on the Town's petition to assess fees at this time. Sincerely, rntuNW-Q ~ Rebecca S. Murray Supervisor of Records cc: Brooks A. Ames, Esq.