Eric Brown v. Melrose, City of - Police Department (SPR 20181716)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 20,201 8 SPR1811716 Kim Upton Executive Assistant Melrose Police Department 56 West Foster Street Melrose, MA 02 176 Dear Kim Upton: I have received your petition on behalf of the Melrose 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 Ofices of Eric R. Brown. G. L, c. 66, 5 lO(d)(iv). As required by law, a municipality Id. must furnish a copy of their petition to the requestor. In this matter, ~ttornBer~ow n requested, "[all1 motor vehicle accident reports for [Melrose] from November 5,2018 to November 11,2018." 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, 5 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, 5 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, 5 1O (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

Kate Upton Page 2 November 20,20 18 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 Id. requested public records. Current Petition In your November 13,2018 petition to this office you expressed that, "[tlhe Melrose Police Department is requesting a time extension and an assessment of fees for the attached records request from the Law Ofices of Eric R. Brown." You also state, "[tlhe law office confirmed it was for commercial purposes when contacted and claimed the weekly request is for 'marketing purposes'. Included in our petition, is both the weekly request we receive and a copy of the form letter that the law office intends to mail to the involved parties to advertise legal services." Your petition further expressed, "it is estimated that the entire processes will take approximately three hours to complete for the attached request with a cost of $25 per house for the one 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. Based on the Department's November 13,2018 petition and the correspondence provided, it is my understanding that the requests made by the Law Offices of Eric R. Brown meet the statutory definition of "commercial purpose" within the Public Records Law. See G. L. c. 66, 5 lO(d)(ix); see also SPRl8113 18 Determination of the Supervisor of Records (September 5,20 18). 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). Further, in light of the Department's November 13'" 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

Kate Upton Page 3 November 20,20 18 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, $ 10(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. G. L. c. 66, $ 10A(c). Sincerely, u Rebecca S. Murray Supervisor of Records cc: Eric R. Brown, Esq.