Nicole M. Avitabile, Esq. v. Pembroke, Town of - Police Department (SPR 20192210)

William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

November 6, 2019 SPR19/2210 Kathryn Tierney Secretary to Chief of Police Pembroke Police Department 80 Center St. Pembroke, MA 02359

Dear Ms. Tierney:

I have received your petition on behalf of the Pembroke Police Department

(Department) seeking to charge $25 an hour in responding to a request made by Attorney Nicole _ Avitabile of the Law Offices of Rawson Merrigan & Litner. G. L. c. 66, § 10(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 Avitabile a copy of their petition.

Sepcifically, on October 24, 2019, Attorney Avitabile requested, “all police reports involving

motor vehicle accidents in your possession, custody, or control, from 10/10/2019 to present to be

sent to me in electronic format.”

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, § 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 . 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, § 10(d)(iv). The second prong of the test is whether the fee represents an actual and good faith

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

Kathryn Tierney SPR19/2210 Page 2 November 6, 2019

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 October 31, 2019 petition the Department requests “an assessment of fees for the attached reocrds request from the Law Office of Rawson Merrigan & Litner.” The Department explains “[t]his has been a biweekly request. Based in 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.”

The Department attached a copy of an advertisement stating the law firm practices personal injury law and believes “their objective is to advance the requestor’s strategic business interests and is therefor a commercial purpose..." The Department estimates to search, redact, and reproduce the reproduce the records, “the entire process will take approximately three hours to complete...with a cost of $25 per hour for the one employee involved in the assignement.”

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).

Based on the Department's Ocotber 31% petition and the correspondence provided, it is my understanding that the requests made by the Law Offices of Rawson Merrigan & Litner meet the statutory definition of “commercial purpose” within the Public Records Law. See G. L. c. 66, § 10(d)(ix); see also SPR19/0185 Determination of the Supervisor of Records (January 31, 2019).

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 fee for the first two hours of

Kathryn Tierney . SPR19/2210 Page 3 November 6, 2019

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).

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).

Lh bwoca .

Rebecca Kelecca Murray Supervisor of Records

ce: Nicole Avitabile, Esq.