Eric Brown v. Amesbury, City of - Police Department (SPR 20201720)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 24, 2020 SPR20/1720 Janet L Nicolaisen Administrative Assistant Public Records Access Officer Amesbury Police Department 19 School Street Amesbury, MA 01913 Dear Ms. Nicolaisen: I have received your petition on behalf of the Amesbury Police Department (Department) requesting permission to charge for time spent segregating or redacting responsive records under G. L. 66, § 10(d)(iv). Please be advised, the law requires custodians to furnish a copy of any petition to the requestor. G. L. c. 66, § 10(d)(iv). On September 14, 2020, Attorney Eric Brown, of the Law Offices of Eric R. Brown, requested “[a]ll motor vehicle accident reports for your municipality from September 7, 2020 through September 13, 2020.” Petitions to Assess Fees 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 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

Janet L Nicolaisen SPR20/1720 Page 2 September 24, 2020 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 September 17, 2020 petition, the Department indicates “[t]his law office is requesting all accident reports on a weekly basis for commercial purposes.” The Department explains “[t]his law office requests these reports every week and has been for quite some time... this is a possibility due to the reason for the request is not for specific clients but any and all accidents on a weekly basis. I would like to be able to charge them for search and redaction time.” I understand the Law Offices of Eric R. Brown is a law firm that handles all types of personal injury cases 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). I find that the request for weekly accident reports is intended to be used for marketing purposes and was made to advance the law firm’s strategic business interests. Consequently, this purpose meets the statutory definition of “commercial purpose” within the Public Records Law. See G. L. c. 66, § 10(d)(ix); see also SPR18/1318 Determination of the Supervisor of Records (September 5, 2018); SPR20/0304 Determination of the Supervisor of Records (February 24, 2020). Conclusion Based on the Department’s petition and my finding that the requests are for a commercial purpose, I approve the Department's petition to charge fees for segregation and redaction. Attorney Brown may seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10(c), 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Eric Brown, Esq.