Eric Brown v. Weymouth, Town of - Police Department (SPR 20192192)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S, Murray Supervisor of Records

November 4, 2019 . SPR19/2192 Captain Joseph Comperchio Weymouth Police Department 140 Winter Street Weymouth, MA 02188

Dear Captain Comperchio:

Thave received your petition on behalf of the Weymouth Police Department (Department) seeking to charge fees in responding to requests made by Attorney Eric R. Brown of the Law Offices of Eric R. Brown. G. L. c. 66, § 10(c), (d)(iv).

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). i

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 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.

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

Captain Comperchio SPR19/2192 Page 2 November 4, 2019

Fee Estimates

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).

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, § 10(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, § 10(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, § 10(d)(iv). See G. L. c. 66, § 10(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 its petition to this office the Department states, “[t]he Weymouth Police Department is requesting an assessment of fees for the attached records from the Law Offices of Eric Brown. This is a weekly request that we were informed would continue in perpetuity. Based on our experience with other records requests of this type, this appears to be for a commercial purpose to either seek out new clients or establish a list of potential clients for the law firm.” The Department expressed, “[t]he law office confirmed it was commercial purposes when contacted. Included in our petition, are some of the requests that we received from the Law Offices of Eric Brown.”

‘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, §

10(d)(ix).

The Department writes, “[i]f the supervisor of records agrees that this request is for a commercial purpose, then I respectfully petition that the Weymouth Police Department be

‘Captain Comperchio _ SPR19/2192 Page 3 November 4, 2019 -

allowed to assess a fee for the time needed of our records clerk to search, redact, scan and email

the records requested by this law firm. It is estimated that the entire process will take

_ approximately 1 to 2 hours to complete the attached request with a cost of $25.00 per hour for the one employee involved in the assignment.”

Based on the Department’s petition and the correspondence provided, it is my understanding that the requests made by the Law Offices of Eric R. Brown meet the statutory definition of “commercial purpose” within the Public Records Law. See G. L. c. 66, § 10(d)(x); see also SPR18/13 1 8 Determination of the Supervisor of Records (September 5, 2018).

Conclusion

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 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, § 10(d)(iii).

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, § 10(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 - Department 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, § 10A(c).

Olesce

Blherea S. Murray Supervisor of Records

ce: Eric R. Brown, Esq.