Two Legal Offices v. North Andover, Town of - Police Department (SPR 20241981)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 16, 2024 SPR24/1981 Pamela Dempsey Records Clerk North Andover Police Department 1475 Osgood Street North Andover, MA 01845 Dear Ms. Dempsey: On July 10, 2024, this office received your petition on behalf of the North Andover Police Department (Department). As required by law, the Department furnished a copy of this petition to the requestors, Brown & Goldberg, PC and The Law Office of David D. Curtis, Jr., LLC. G. L. c. 66, § 10(d)(iv). In its petition, the Department notes that “two legal offices… request weekly motor vehicle crash reports for commercial purposes[.]” Please note that in an email to this office on July 11, 2024, Attorney David Curtis, of the Law Office of David D. Curtis, Jr., LLC., raised multiple objections to the Department’s petition. Petition to Assess Fees – Municipalities 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). 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

Pamela Dempsey SPR24/1981 Page 2 July 16, 2024 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 redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 2 (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 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 July 10th petition, the Department requests “a Dissolution/Denial of Commercial Purpose Records Requests from two legal offices (and any future requesters) who request weekly motor vehicle crash reports for commercial purposes, and not for public transparency.” The Department further states: From past inquiries, it is [the Department’s] understanding that these attorneys will continue these requests in perpetuity, and the weekly requests are strictly for marketing purposes and the financial gain of independent businesses. The attorneys are not considered permissible users of this information as defined by law. . . . [P]lease note that there is no public interest served by these requests, other than private monetary gain, which is illegal. The Department is advised that in petitioning for “a Dissolution/Denial of Commercial Purpose Records Requests[,]” it seeks relief outside the scope of statutory authority given to the Supervisor under the Public Records Law. See G. L. c. 66, § 10(d)(iii), (iv); 950 C.M.R. 32.06(4). Further, in requesting “a Dissolution/Denial of Commercial Purpose Records

Pamela Dempsey SPR24/1981 Page 3 July 16, 2024 Requests” for records requests not yet received, the Department requests relief outside the scope of statutory authority given to the Supervisor under the Public Records Law. Id. Insofar as the Department indicates in its petition that the requests are for a commercial purpose, please note, 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 3. the public records request is made solely for a commercial purpose Conclusion In light of the above, I am unable to assist in this matter. Accordingly, I will consider this petition closed. Sincerely, Manza Arthur Supervisor of Records cc: Eitan Y. Goldberg, Esq. David D. Curtis, Jr., Esq.