Eitan Y. Goldberg v. Easton, Town of - Police Department (SPR 20200439)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 9, 2020 SPR20/0439 Chief Gary Sullivan Easton Police Department 46 Lothrop Street North Easton, MA 02356 Dear Chief Sullivan: I have received your petition on behalf of the Easton Police Department (Department) seeking to charge a fee in responding to a request made by Attorney Eitan Y. Goldberg of Brown and Goldberg,PC. G. L. c. 66, § lO(d)(iv). As required by law, a municipality must furnish a copy of their petition to the requestor. Id. It is my understanding that Attorney Goldberg has received a copy of your petition in this matter. On March 2, 2020 Attorney Goldberg requested, "[a]ll motor vehicle accident reports for [Easton] from Feburary 24, 2020 through March 1, 2020." 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, § lO(d)(iv). The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. 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

Chief Gary Sullivan SPR20/0439 Page 2 March 09, 2020 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 petition to this office dated March 2, 2020 you state,"[t]he Easton Police Department is requesting an assessment of fees for the attached records request from the Law Offices of BROWN AND GOLDBERG, PC." You further note, "[t]hese requests from BROWN AND GOLDBERG, PC have been emailed to our agency weekly since 2018 and we believe these requests will continue in perpetuity (see attached). 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. We believe that their objective is to advance the requestor's strategic business interests in a manner that the requestor can reasonably expect to make a profit which we believe falls within the definition of 'commercial purpose."' The term "commercial purpose" as used in the Public Records Law is defined as: 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). In your petition you expressed, "[i]f the supervisor of records agrees that this is for a commercial purpose, then I respectfully petition that the Easton Police Department be allowed to assess a fee for the time needed of our records clerk to search, redact and reproduce the records requested by this law firm. 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 for the one employee involved in the assignment." Based on the Department's March 2nd petition and the correspondence provided, it is my understanding that the requests made by Brown and Goldberg, PC meet the statutory definition of"commercial purpose" within the Public Records Law. See G. L. c. 66, § lO(d)(ix); see also SPR18/1318 Determination of the Supervisor of Records (September 5, 2018). 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 $25 an hour to produce the responsive

Chief Gary Sullivan SPR20/0439 Page 3 March 09, 2020 documents. 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). , 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, § 1O A( c ). ' Sincerely, Rebecca S. Munay Supervisor of Records cc: Eitan Y. Goldberg, Esq.