Lorenzo Fakhouri v. Westminster, Town of - Police Department (SPR 20251329)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 19, 2025 SPR25/1329 Stephanie Welch Executive Assistant to the Police Chief Westminster Police Department 7 South Street Westminster, MA 01473 Dear Ms. Welch: On May 13, 2025, this office received your petition on behalf of the Westminster Police Department (Department) seeking a waiver of statutory limits on fees that may be assessed in responding to the request, and relief from the obligation to produce responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, I understand that the Department furnished a copy of this petition to the requestor, Lorenzo Fakhouri, of Haddad Law Firm, PC. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On April 28, 2025, Mr. Fakhouri requested “police accident reports from 4/13/25 to 4/27/25 via email.” On May 6, 2025, Mr. Fakhouri requested “police accident reports from 4/27/25 to 5/4/25 via email.” On May 12, 2025, Mr. Fakhouri requested “police accident reports from 5/5/25 to 5/11/25 via email.” Please note that the Department submitted its petition on May 13, 2025, more than ten business days after receipt of the April 28, 2025 request. In light of the fact the Department has not demonstrated it submitted a timely petition for the April 28th request, permission to charge fees in excess of $25.00 per hour cannot be granted for that request. 950 C.M.R. 32.06(4)(g). Consequently, I will address the Department’s petition with regard to the May 6th and May 12th requests. Petitions for an Extension of Time and Relief from the Obligation to Provide Records Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: 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

Stephanie Welch SPR25/1329 Page 2 May 19, 2025 (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. -- The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(b). Request for Relief In its petition, the Department requests “relief from responding to a series of repetitive and burdensome public records requests submitted by Haddad Law Firm, PC, which are being made for a commercial purpose.” In support of its request, the Department argues the following: On April 28, 2025, our department received a public records request from this entity seeking copies of all motor vehicle accident reports filed between April 13, 2025, and April 27, 2025. Subsequently, on May 6, 2025, we received a nearly identical request seeking accident reports for the period of April 28, 2025, to May 4, 2025. Most recently, on May 12, 2025, we received a third request for accident reports covering May 5, 2025, to May 11, 2025. It has come to our attention that the May 6 request was also submitted in identical form to over 80 police departments across the Commonwealth, suggesting a coordinated and systematic effort to collect accident data statewide. These records appear to be used for client solicitation and other commercial purposes, rather than for journalistic, academic, or civic reasons. Further supporting this interpretation, on May 7, 2025, the requester confirmed via email that their request was being made for a commercial purpose. This admission, combined with the repetitive and wide-ranging nature of the requests,

Stephanie Welch SPR25/1329 Page 3 May 19, 2025 strongly suggests that the requester is using the public records process to support a private business enterprise. While we recognize the importance of transparency and the public's right to access records, the volume, frequency, and narrow time windows of these requests—particularly when considered in the context of a broader, multi- departmental solicitation—constitute an unreasonable burden on our limited administrative resources. Processing such high-volume, commercial requests diverts staff time and resources from essential public safety operations and delays our ability to respond to non-commercial records requests from members of the public. Based on the information provided in the Department’s petition, I find that the Department has not demonstrated that the requests are frivolous and not intended for the broad dissemination of information to the public about actual or alleged government activity, as required by G. L. c. 66, § 10(c). Accordingly, I am unable to grant the Department’s request for relief from the obligation to produce responsive records. Petition to Assess Fees – Municipalities 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. 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 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

Stephanie Welch SPR25/1329 Page 4 May 19, 2025 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 May 12th petition, the Department requests the following: In the event that relief from responding to these requests is not granted, we respectfully petition for authorization to assess a reasonable fee in accordance with M.G.L. c. 66, §10(d), to offset the significant staff time required to fulfill these commercial requests. Specifically, we propose charging $31.69 per hour for five hours of staff time per request, totaling $158.45 per request. The combined total for the three current requests would be $475.35. This hourly rate reflects the pay of the lowest-paid employee in our department who is qualified to compile, review, and produce the requested records. In its petition, the Department also argues the following: These records appear to be used for client solicitation and other commercial purposes, rather than for journalistic, academic, or civic reasons. . . . Further supporting this interpretation, on May 7, 2025, the requester confirmed via email that their request was being made for a commercial purpose. Please be advised that the term “commercial purpose” as used in the Public Records Law 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

Stephanie Welch SPR25/1329 Page 5 May 19, 2025 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 petition and the information provided above, it is my understanding that the requests made by Mr. Fakhouri meet the statutory definition of “commercial purpose” within the Public Records Law. See G. L. c. 66, § 10(d)(ix); see also ----- SPR20/2599 Determination of the Supervisor of Records (January 5, 2021). Based on the Department’s petition and my finding that the requests are for a commercial purpose, I approve the Department’s petition to assess fees in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). The Department may assess a fee limited to $31.69 per hour. Conclusion As noted above, based on the Department’s petition and my finding that the requests are for a commercial purpose, I approve the Department’s petition to assess a fee limited to $31.69 per hour in responding to the May 6th and May 12th requests. However, as discussed above, I am not able to grant the Department’s request for relief from the obligation to provide responsive records, and I am not able to grant the Department’s request to assess fees in excess of $25.00 per hour for the April 28th request. Please note, Mr. Fakhouri 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, §§ 10(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Lorenzo Fakhouri