Eric Brown v. Norwood, Town of - Police Department (SPR 20191704)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 27, 2019 SPR19/1704 Mario Costa Norwood Police Department . 137 Nahatan Street Norwood, MA 02062 Dear Mario Costa: I have received your petition on behalf of the Nordwood 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 an hour in responding to a request made by Attorney Eri~ 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 its petition. In this matter, Attorney Brown requested, "[a ]ll motor vehicle accident reports for your municipality [Norwood] from August 05, 2019 tlu·ough August 11, 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 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.The Supervisor must consider 1) if One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Mario Costa SPR19/l 704 Page 2 August 27, 2019 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 petition to this office dated August 21, 2019 you state, "[t]he Norwood Police Department is requesting a time extension and an assessment of fees for the attached records request from the Law Offices of Eric Brown.You fmiher state, [t]his is a weekly request that we were informed would continue in perpetuity. Based on our experience with other records requests of this type, this appeared to be for a commercial purpose to either seek out new clients or establish a list of potential clients for the law firm." You note, "[i]fthe supervisor ofrecords agrees that this is for a commercial purpose, then I respectfully petition that the Norwood Police Department be allowed to assess a fee for the time needed of our records clerk to search, redact and reproduce the records requested by this law firm. It is estimated that the entire process will take approximately three hours to complete for the attached request with a cost of $25 per hour 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 fmiher the understanding of the operation or activities of government or for academic, scientific, journalistic or public research or education. G. L. c. 66, § 10( d)(ix). Based on the Department's August 21st 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 SPRl 8/1318 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, the Department may charge $25 an hour to produce the responsive documents. Please be advised, municipalities may not assess a Jee 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). Fmiher, in light of the Department's August 21st petition for a time extension, I decline to opine on the Depmiment's petition as the requestor has not agreed to pay the estimated

Mario Costa SPR19/l 704 Page 3 August 27, 2019 fee for the provision of responsive records. If after hearing from Attorney Brown regarding an acceptance of the estimate the Department still requires an extension of time to comply with the request, the Department may file a subsequent petition. See G. L. c. 66, § lO(c); 950 C.M.R. 32.06(4)(g). This office encourages Attorney Brown and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § lO(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). 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, ~~ Supervisor of Records cc: Eric R. Brown, Esq.