Eitan Y. Goldberg v. Fall River, City of - Police Department (SPR 20181339)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 18 ,201 8 SPR1811339 Lieutenant Daniel J. Ahaesy Staff Services Division Commander City of Fall River Police Department 685 Pleasant Street Fall River, MA 02721 - - Dear Lieutenant Ahaesy: I have received the petition of Eitan Goldberg, Esq. of the Law Ofices of Eric R. Brown appealing the response of the City of Fall River Police Department (Department) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Goldberg requested a copy of: 1. [all1 [mlotor [vlehicle [alccident reports for Fall River, Massachusetts from August 20,20 18 through August 26,20 18; and 2. [all1 [mlotor [vlehicle [alccident reports for Fall River, Masssachusetts from August 27,2018 through September 2,201 8. In a September 6,201 8 email, the Department's Records Clerk, Cindy Page, informed Attorney Goldberg that the thirty-three responsive accident reports were printed, and can be purchased for $5.00 per accident report. The Department advised that once Attorney Goldberg sends the Department a check for $165.00 the records will be mail, or if he chooses the records can be picked up. Attorney Goldberg questioned the $5.00 charge per accident report indicating that it was his belief that under the revised Public Records Law that took effect on January 1,2017, the provision that allowed police departments to charge $5.00 per report was stricken from the new law and no longer exists. In an August 3othe mail from the Department, you stated, "I appreciate your guidance; however, we have been directed by the City of Fall River Law Department to charge a fee of $5.00 for accident reports as a document fee. I apologize for any confusion; please refer any further inquiry to the City of Fall River (City) Law Department." 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

Lieutenant Daniel J. Ahaesy Page 2 September 18,201 8 In his petition to the Supervisor of Records (Supervisor), Attorney Goldberg indicated that the City's Law Department never responded to his August 3oth email seeking a correction to the fee estimate or an explanation. As a result, an appeal was opened. Fees - Municipalities The Department and the City's Law Department is advised that under the Public Records Law and its Regulations, effective January 1,201 7, municipal police and fire departments may no longer charge flat rate fees, such as $5.00 per accident report. Therefore, if the Department intends to charge Attorney Goldberg for the cost of providing the responsive accident reports, it must provide him with a written, good faith estimate. G. L. c. 66, 5 lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Municipalities may not assess a fee for the first (two) 2 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, 5 lO(d)(iii). Population data shall be determined by the decennial U.S. Census and it is the burden of the municipal RAO to provide such information in its response. 950 C.M.R. 37.07(2)(m)(2)(i-ii). 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 a. shall not be more than $25 per hour. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, 5 1O (d)(iv). Additionally, the reasonable fee for reproduction shall not exceed the actual cost of reproducing the record. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, 5 lO(d)(iv). See G. L. c. 66, 5 lO(d)(iii); see also 950 CMR 32.06(4). A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, 5 10(d). The fees must Id. reflect the actual cost of complying with a particular request. A maximum fee of five cents ($.05) per page may be assessed for black and white copies for both single and double-sided copies of a public record. G. L. c. 66, 5 10(d)(i). Order Accordingly, the Department is ordered to provide Attorney Goldberg with a fee estimate, in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@,sec.state.ma.us.

Lieutenant Daniel J. Ahaesy Page 2 September 18,201 8 Sincerely, Rebecca S. Murray Supervisor of Records cc: Eitan Goldberg, Esq. Joseph I. Macy, Esq., Corporation Counsel