Eitan Y. Goldberg v. Spencer, Town of - Police Department (SPR 20211477)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 16, 2021 SPR21/1477 Lt. Michael Befford Records Access Officer Spencer Police Department 9 West Main Street Spencer, MA 01562 Dear Lt. Befford: On June 14, 2021, this office received your petition on behalf of the Spencer Police Department (Department) seeking to charge $52.30 per hour in responding to a request made by Attorney Eitan Y. Goldberg of Brown and Goldberg, PC. G. L. c. 66, § 10 (d)(iv). As required by law, the Department furnished a copy of their petition to the requestor. G. L. c. 66, § 10(c). On June 7, 2021 Attorney Goldberg requested, “[a]ll motor vehicle accident reports for [Spencer] from May 31, 2021 through June 6, 2021.” Petitions to assess fees 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 (Supervisor) 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). 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. 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 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 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

Lt. Michael Befford SPR21/1477 Page 2 June 16, 2021 redaction or segregation; 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. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimate 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) 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, § 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 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) 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, § 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 The Department’s June 14th petition states, “…we provided the requester with a written response, wherein we: confirmed receipt of the request; we further stated that it appeared that there request met the definition of ‘Commercial Purpose’ in the Massachusetts Public Law.” The Department further notes, “[t]he requested records includes an amount crash documents that will need to be reviewed, scanned and redacted as allowed by law. The lowest paid employee who has the necessary skill to complete the search and segregation of these records is Police Lieutenant. This is due to the fact that the police chief has directly assigned the

Lt. Michael Befford SPR21/1477 Page 3 June 16, 2021 lieutenant, as sole individual, to complete as the dispatchers (administrative also) are not permitted to fill requests due to job assignments. Administrative Assistant has limited hours and is not assigned to public records requests. The Lieutenant normal hourly rate is $52.30.” 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 June 14th petition and the correspondence provided, it is my understanding that the requests made by Attorney Goldberg meet 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). 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 $52.30 an hour to produce the responsive documents. 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). Sincerely, ./JA ~~~- ~0 ~ . ~ Rebecca S. Murray Supervisor of Records cc: Eitan Y. Goldberg, Esq.