Eric Brown v. Holyoke, City of - Police Department (SPR 20190185)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 31, 2019 SPR19/185 Caron L. Porter Records Access Officer Holyoke Police Department 13 8 Appleton Street Holyoke, MA 01040-5705 Dear Officer Porter: I have received your petition on behalf of the Holyoke Police Department (Department) seeking to charge $25 an 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 the Department provided.Attorney Brown a copy of their petition. In this matter, Attorney Brown requested, "[a]ll motor vehicle accident reports for your municipality[Holyoke] from January 21, 2019 through January 27,2019." 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 redac;:ting 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. The Supervisor must consider 1) if 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

Caron L. Porter SPR19/185 Page2 January 31, 2019 the fee is necessary such that the request could not have been prudently completed without the redactio'n 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 January 28, 2019 petition to this office you state, "I am submitting a petition to charge $25 an hour for request made by the Law Offices ofE ric R. Brown." You note, "[eJ ach time, this office is requesting all accident reports for the prior week. I believe this to be for 'Comercial Purposes' to obtain new clients. This is a very, time consuming process, which is done on a weekly bases, and requires a time consuming redaction process." The Janaury 28th pettion further adds, "[t]he $25 fee per hour, that we are requesting represents an actual and good faith representation by the agency to comply with the request, the fee is necessary such that the request could not have been prudently completed without reactions. We feel the fee is reasonable and the fee is not designed to limit, deter or prevent access to requested public records." 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 January 28, 2019 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). 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, § lO(d)(iii). 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).

Caron L. Porter SPR19/185 Page 3 January 31, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Eric R. Brown, Esq.