Eric Brown v. Westfield, City of - Police Department (SPR 20192337)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 25, 2019 SPR19/2337 Robyn Gay Paralegal & Records Access Officer Westfield Police Department 15 Washington St. Westfield, MA 02188 Dear Ms. Gay: I have received your petition dated November 18, 2019 on behalf of the Westfield Police Department (Department) seeking an extension of time to furnish copies of a requested record, or any p01iion thereof, as well as to charge $25 an hour in responding to a request made by Attorney Eric R. Brown of the Law Offices ofE ric R. Brown. G. L. c. 66, § lO(c), (d)(iv). A.s 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. Specifically, on November 11, 2019 Attorney Brown requested, ''[a]ll motor vehicle accident reports for your municipality from November 10, 2019 through November 3, 2019." Petitions for an exte11sio11 of time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine· records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts unde1iaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. 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

Robyn Gay SPRl 9/2337 Page 2 November 25, 2019 G. L. c. 66, § lO(c). 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, § lO(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, § lO(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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § lO(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, § 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.K 32.06(4).

Robyn Gay SPR19/2337 Page 3 November 25, 2019 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 Depatiment states, "[t]he City of Westfield Police Department is requesting an extension of time and an assessment of fees for the attached records request from the Law Offices of Eric Brown. This is a request that we are receiving weekly. Based on our experience with other records requests of this type, it does appear to be for commercial purposes to either seek out new clients or establish a list of potential clients for the law firm." The Depmiment expressed that "these requests are for commercial purposes for soliciting involved persons for legal services as a result of obtaining data from our records. We believe that their objective is to advance the requester strategic business interests and is therefore a commercial purpose." The term "commercial purpose" as used iri this section shall mean: the sale or resale of any portion oft he 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 repoliing 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 ofrecords agrees that this is for a commercial purpose, then I respectfully petition that the City of Westfield Police Department be allowed to access a fee for the time needed to search, redact and reproduce the records requested by this Law firm for this request and any future requests. 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." Based on the Depmiment'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 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 Depmiment 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).

Robyn Gay SPR19/2337 Page 4 November 25, 2019 Further, I decline to opine on the Department's petition at this time as the requestor has not agreed to pay the estimated 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 or a waiver of the statutory limits on fees, the L Department may file a subsequent petition. See G. c. 66, § I 0( c ); 950 C.M.R. 32.06( 4)(g) . . This office encourages Attorney Brown and the Depaiiment to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § I O(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 comi. See G. L. c. 66, § I OA( c ). Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Eric R. Bi·own, Esq.