Eric Brown v. West Springfield, Town of (SPR 20191274)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 26, 2019 SPR19/1274 Attorney Kate R. O'Brien Town of West Springfield 26 Central Street, Suite 32 West Springfield, MA 01089 Dear Attorney O'Brian: I have received your petition on behalf of the Town of West Springfield (Town) seeking permission to charge for time spent segregating or redacting records responsive 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, the Town furnished a copy of their petition to the requestor. Id. In this matter, Attorney Brown requested, "[a]ll motor vehicle accident reports for [West Springfield] from June 17, 2019 to June 23, 2019." Petition to assess fees A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d )(i). 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, § 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 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

Attorney O' Brian SPR19/1274 Page 2 June 26, 2019 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, § 10(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 June 25, 2019 petition you expressed that, "[t]he accident reports sought by Attorney Brown contain sensitive data that requires a member of the Police Department to review each report and redact information that is otherwise protected by statute ( e.g., Criminal Offender Record Information ('CORI'), protected by M. G. L. c. 6,§ 172; personal information such as Social Security and Drivers' License numbers, protected by M. G. L. c. 93H, etc.)." In the June 251 h petition, "[t]he town is seeking permission, pursuant to G. L. c. 66, § lO(d)(iv), to charge Attorney Brown for time spent segregating and redacting any records going forward." The Town notes, "the time spent responding to each weekly request separately generally does not exceed two (2) hours, the time spent responding to the requests in the aggregate has far exceeded the two (2) hour exemption set out in 950 CMR 32.07(22)(m)l." Further, "[g]iven that the Town anticipates the request to continue, and that Attorney Brown has admitted that the records are being requested for a commercial purpose, the Town is requesting permission to charge for time spent segregating, redacting, and responding to the June 24, 2019, June 17, 2019 and June 10, 2019 requests as well as any future request from Attorney Brown."

Attorney O' Brian SPR19/1274 Page 3 June 26, 2019 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 Town's June 25th 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, § 10( d)(ix); see also SPR18/1318 Determination of the Supervisor of Records (September 5, 2018). Further, it is my understanding that the Town does not seek to charge in excess of $25 an hour for provision of public records. Conclusion In light of the Department's petition and my finding that the requests are for a commercial purpose, I approve the Town's petition to charge for time spent segregating and or redacting"[a]ll motor vehicle accident reports for [West Springfield] from June 17, 2019 to June 23, 2019." Any fee estimate by the Department must be in compliance with this determination, the Public Records Law, and its Access Regulations. Please note 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). Further, 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.

Attorney O' Brian SPR19/1274 Page4 June 26, 2019