Eric Brown v. Chelmsford, Town of - Police Department (SPR 20181627)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 7, 2018 SPR18/1627 Kathleen Bennett Chelmsford Police Department 2 Olde North Road Chelmsford, 01824 Dear Kathleen Bennett: I have received your petition on behalf of the Chelmsford Police Department (Department) seeking to charge $25 per hour in responding to a request made by Attorney Eric R. Brown of the Law Offices ofE ric R. Brown. G. L. c. 66, § lO(d)(iv). As required by law, a municipality must furnish a copy of their petition to the requestor. Id. It is my understanding that Attorney Brown has received a copy of your petition and in this matter. Attorney Brown is requesting: • All Motor Vehicle Accident reports for Chelmsford, Massachusetts from October 15, 2018 through October 21, 2018; • All Motor Vehicle Accident reports for Chelmsford, Massachusetts from October 22, 2018 through October 28, 2018. 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, § 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 or to charge in excess of $25 an hour for the provision of public records. The 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

Kathleen Bennett SPR18/1627 Page2 November 7, 2018 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. 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 November 5, 2018 petition you provided this office with Attorney Brown's request and the "advertisements he sends out to involved parties in motor vehicle accidents." In the November 5th letter, you expressed that, "[t]he Law Office of Eric Brown is requesting reports on a weekly basis for a commercial purpose." You then state, "[i]n the past his request would be addressed to the Chelmsford Police Department. Now I have found it to be more of a blanket request and he fills in by hand the police department's name ... I have also received[ ... ] several phone calls from involved parties that were upset that they were being solicited by Mr. Brown's Law Office regarding their motor vehicle accident." 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). Based on the Department's November 5, 2018 petition and the correspondence provided, it is my understanding that the requests made by the Law Offices ofE ric R. Brown meet the statutory definition of "commercial purpose" within the Public Records Law. See G. L. c. 66, § lO(d)(ix); see also SPR18/1318 Determination of the Supervisor of Records (September 5, 2018). In light of the Department's petition, the intervention by a member of this Division, 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).

Kathleen Bennett SPR18/1627 Page 3 November 7, 2018 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, § IOA(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Eric R. Brown, Esq.