Eitan Y. Goldberg, Esq. v. Dracut, Town of - Police Department (SPR 20230754)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 24, 2023 SPR23/0754 Peter Bartlett Chief of Police Dracut Police Department 110 Loon Hill Road Dracut, MA 01826 Dear Chief Bartlett: On April 18, 2023, this office received your petition on behalf of the Dracut Police Department (Department) requesting permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor. Id. On April 10, 2023, Eitan Y. Goldberg, Esq., of Brown and Goldberg, PC, requested, “[a]ll motor vehicle accident reports for your municipality from April 3, 2023 through April 9, 2023.” Petition to assess fees The 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, § 10(d)(iv). It is my determination that the request was made for a commercial purpose. 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 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 Peter Bartlett SPR23/0754 Page 2 April 24, 2023 necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee estimate – municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). Current Petition In its April 18th petition, the Department states: The Department believes that the requested reports are sought for a commercial purpose. Mr. Goldberg’s letterhead identifies him as an attorney in a personal injury law firm. Based on the fact that the requests are made under cover of his law firm, and the regular pattern of weekly requests, the Department believes that Mr. Goldberg or his firm uses the accident reports to develop a list of potential personal injury clients, or otherwise to support his law practice. In addition, the Department states: Like Mr. Goldberg’s previous requests for recent motor vehicle accident reports, it is likely that reports responsive to the April 10, 2023 request will contain personal information or other information protected by [Exemption (c)] …. Personal information includes driver’s license numbers, which are likely to be contained in a motor vehicle accident report. Similar personal information, such as a private citizen’s cellular telephone number, may be withheld under

Chief Peter Bartlett SPR23/0754 Page 3 April 24, 2023 [Exemption (c)] if the public interest in the disclosure of such information does not outweigh the privacy interests. 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 April 18th petition, it is my understanding that the request made by Attorney Goldberg meet the statutory definition of “commercial purpose” within the Public Records Law. See G. L. c. 66, § l0(d)(ix); see also SPR20/2599 Determination of the Supervisor of Records (January 5, 2021). Conclusion In light of the Department’s petition and my finding that the request is for a commercial purpose, I approve the Department’s petition to charge for time spent segregating and redacting the requested records. 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). 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, Manza Arthur Supervisor of Records cc: Eitan Y. Goldberg, Esq.