Eric Brown v. Watertown, City of - Police Department (SPR 20181318)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 5, 2018 SPR18/1318 Sargent George A. Demos Watertown Police Department 552 Main St Watertown MA, 024 72 Dear Sgt. Demos: I have received your petition on behalf of the Watertown Police Department (Department) seeking an extension of time to furnish copies of a requested record, or any portion thereof, as well as to charge $25 in responding to a request made by Attorney Eric R. Brown of the Law Offices ofE ric R. Brown. G. L. c. 66, § 10(d )(iv). As required by law, a municipality must furnish a copy of their petition to the requestor. Id. Attorney Brown requested "[a]ll Motor Vehicle Accident reports for Watertown, Massachusetts from August 13, 2018 through August 19, 2018." Based on the petition it is my understanding that this request is going to be weekly in perpetuity. Petitions to assess fees 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, § lO(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, § lO(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 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. G. L. c. 66, § lO(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. 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

Sgt. George A Demos SPR18/1318 Page2 September 5, 2018 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. Current Petition In your August 29, 2018 petition to this office you state, "[i]fthe Supervisor ofrecords agrees that this is for a commercial purpose then I respectfully petition that the Watertown Police Department be allowed to access a fee for the time needed of our records clerk to search, redact and reproduce the records requested." You also write that "[i]t is estimated that the entire process will take approximately three hours to complete for the attached requested with a cost of $25 per hour for the two employees involved in the assignment." 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, § lO(d)(ix). I understand the Law Offices ofE ric R. Brown is a law firm that handles all types of personal injury cases. Further, in the Department's petition to this office, you state "[t]he office informed my clerk over the phone that it was for 'marketing purposes' and emailed us a copy of the letter they sent to people involved in accident reports." You then added, "[b]ased on the fact that the attached letter is soliciting involved persons for legal services as a result of obtaining data from our records, we believe that their objective is to advance the requester's strategic business and interest." I find that the request for records intended to be used for marketing purposes was made to advance the law firm's strategic business interests. Consequently, this purpose meets the statutory definition of "commercial purpose" within the Public Records Law. See G. L. c. 66, § lO(d)(ix). 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 $25 an hour to produce the responsive documents. 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).

Sgt. George A. Demos SPR18/1318 Page 3 September 5, 2018 Further, in light of the Department's August 29th petition for a time extension, I decline to opine on the Department's petition as the requestor has not agreed to pay the estimated fee for the provision of responsive records. If after hearing from Attorney Brown regarding an acceptance of the estimate the Department still requires an extension of time to comply with the request or a waiver of the statutory limits on fees, the Department may file a subsequent petition. See G. L. c. 66, § lO(c); 950 C.M.R. 32.06(4)(g). Please note, the requestor 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, § lOA(c). Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Eric R. Brown, Esq.