Eric Brown v. Stoneham, Town of - Police Department (SPR 20190037)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 10, 2019 SPR19/0037 Chief James T. McIntyre Stoneham Police Department 4 7 Central Street Stoneham, MA 02180 Dear Chief McIntyre: I have received your petition on behalf of the Stoneham Police Department (Department) seeking relief from its obligation to respond to requests 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 you provided Attorney Brown a copy of your pettion. In this matter Attorney Brown requested, "[a]ll motor vehicle accident reports for your municipality from December 10, 2018 through December 15, 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 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

Chief McIntyre SPR19/0037 Page2 January 10, 2019 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. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). Current Petition In your January 2, 2018 petition to this office you state, "I respectfully pettion you to relieve the Stoneham Police Department from its obligation to comply with any further similar request from the Law Offices ofE ric R. Brown." You state, "[u]pon information and belief, these continuous request are being made for a commercial purpose." The January 2nd pettion expressed that "[o]n December 11, 2018, [a Stoneham Police officer], while operating a Stoneham Police vehicle, was involved in a crash with another vehicle in traffic. A Massachusetts RMV Crash Report was completed ... A copy of [the officer's] report was provided to Attorney Brown on December 17, 2018. On December 19, 2018,[ the officer] received a letter from Attorney Brown advertising legal sevices." In addition, you provided this office the letter and posit, "it is clearly written upon the letter 'This letter was prepared as advertisement only and does not constitue legal advice. Furthermore, it is my belief that the continuous requests being made to the Stoneham Police Department are frivolous as applied to the Massachusetts Public Records Law." 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). Conclusion Based on the Department's January 2, 2019 petition and the correspondence provided, it is my understanding that the request made by the Law Offices ofE ric R. Brown meet the

Chief McIntyre SPR19/0037 Page 3 January 10, 2019 statutory definition of "commercial purpose" within the Public Records Law. See G. L. c. 66, § lO(d)(ix); see also SPRlS/1318 Determination of the Supervisor of Records (September 5, 2018). However, I find the Department has not established that Attorney Brown's requests are "part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass" as required by G. L. c. 66, § lO(c). 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, § 1O A( c ). Sincerely, Rebecca S. Murray Supervisor of Records cc: Eric R. Brown, Esq.