Eric Brown v. Attleboro, City of - Police Department (SPR 20192005)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 3, 2019 SPR19/2005 Lieutenant Brian P. Kelley Attleboro Police Department 12 Union Street · Attleboro, MA 02703 Dear Lt. Kelley: I have received your petition on behalf of the Attleboro Police Department (Department) seeking to charge fees in responding to a request made by Attorney Eric R. Brown of the Law Offices ofE ric R. Brown. G. L. c. 66, § 10( c ), ( d)(iv). In your petition to this office you express, "[r]ecords Clerk Churchill has been providing records request responses including redacted motor vehicle crash repo1is to Attorney Brown since September 24, 2018, and to date has completed 610 redacted records requests costing several hours per week in productivity. The City of Attleboro Police Department respectfully requests permission to charge additional fees to Attorney Eric Brown." Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from an agency 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 agency 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 an agency's petition to allow the agency 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, § 10(d )(iv). The second prong of the test is whether the fee represents an actual and good faith representation by the agency 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 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

Lt. Kelley SPR19/2005 Page 2 October 3, 2019 segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the ptoduction of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). 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. G. L. c. 66, § lO(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a·petition under G. L. c. 66, § lO(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06( 4)(g). Current Petition In your petition you state, "[t]he City of Attleboro Police Depaiiment respectfully requests permission to charge additional fees to Attorney Eric Brown, as these records requests are admittedly for 'commercial purposes' and cost prohibitive fo the depaiiment." The term "commercial purpose" as used in this section shall mean: the sale or resale of any pmiion 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 academiQ, scientific, journalistic or public research or education. G. L. c. 66, § lO(d)(ix). Based on the Department's 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 SPR18/13 18 Determination of the Supervisor of Records (September 5, 2018).

Lt. Kelley SPR19/2005 Page 3 October 3, 2019 Per a discussion with a staff member of the Public Records Division, I learned that the Department no longer wishes to file an appeal at this time as they do not seek to charge in excess of $25 an hour. Conclusion For the reasons discussed above, I find it is unnecessary to opine on the Department's petition as the Department does not seek to charge in excess of $25 an hour. Please be advised, municipalities n:iay 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). This office encourages Attorney Brown and the Depmiment 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). Any updated fee estimate by the Depmiment must be in compliance with this determination, the Public Records Law, and its Access Regulations. 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.