Rabinovitz, David v. Department of Revenue (SPR 20260246)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 5, 2026 SPR26/0246 Roger H. Randall, Esq. Counsel to the Commissioner – Litigation Bureau Massachusetts Department of Revenue 100 Cambridge Street, 7th Floor Boston, MA 02114 Dear Attorney Randall: I have received the petition of David Rabinovitz appealing the nonresponse of the Department of Revenue (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 2, 2026, Mr. Rabinovitz requested clarity on, “[w]hen was the policy change that [the Department] do[esn’t] release information on smaller communities with less than 4 retailers?” Claiming to not yet have received a response, Mr. Rabinovitz petitioned this office and this appeal, SPR26/0246, was opened as a result. The Department provided a response on January 28, 2026. Unsatisfied with the Department’s response, Mr. Rabinovitz reiterated his appeal. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. See G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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

Roger H. Randall, Esq. SPR26/0246 Page 2 February 5, 2026 If there are any fees associated with a response a written, good faith estimate must be provided. See G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current Appeal In his January 23, 2026 appeal to this office, Mr. Rabinovitz stated, “I never received a response to my January 2, 2026 question. It has now been 3 weeks. The prior 2023 Excel files listed 135 municipalities. The DOR’s new ‘rule’ reduces the disclosure to only 30 municipalities. I reviewed A Guide to the Massachusetts Public Records Law, specifically. Exemptions to the Public Records Law and can find nothing to support DOR’s new rule that tax collection data for certain municipalities is no longer publicly available. The data that was disclosed took from May 9, 2025 to January 2, 2026, to be disclosed –that is 1 week shy of 8 months. The current Excel file was created by [an identified individual]. I am seeking your office’s guidance on whether the withholding is legal and if not, how do I get a response in a lawful amount of time? It is clear from the very first request that this data does not take long to assemble, and even when assembled timely, the request sits and sits until I follow up.” The Department’s January 28th Response In its January 28, 2026 response, the Department stated the following: Attached to this email is the spreadsheet that the Department had created for its own purposes and produced to Mr. Rabinowitz on Jan. 2 2026, containing the distributed amounts of local-option marijuana tax for all cities and towns with more than 3 taxpayers, and without the totals of any town where there were … 3 or fewer taxpayers comprising the total for that town. (Column C on the spreadsheet states the number of marijuana businesses in that town from which tax was collected.) This is not, as Mr. Rabinovitz contends, a “new rule.” General Laws chapter 62C, section 21(a), prohibits the disclosure (by any employee of the Commonwealth) of information contained in a tax return or other document filed with the Commissioner of Revenue, with exceptions states in 21(a) that are not applicable here. When the Department produces statistical information it has created, the Department discloses the statistical information so as not to reveal implicitly or indirectly the amount of tax paid by a taxpayer. That means, when we set forth total revenue collected in one town for a particular tax-type (in this case, the Local-Option Marijuana Tax), we do not disclose a total that is collected in that town from 3 or fewer taxpayers, because a requestor, with just some additional external information from another source, or if they are one of the taxpayers, or two of the three, may break out the total tax paid by the other of those taxpayers. That would be disclosure of information contained in the Marijuana tax return of that business, therefore covered by section 21(a). (If an earlier disclosure of

Roger H. Randall, Esq. SPR26/0246 Page 3 February 5, 2026 similar information was at variance with this principle, then that earlier disclosure would have been error.) …. Just a note of protest. It is well-settled that the Department has no obligation to create new records. When we possess particular statistical information, then it is because we created if for the Department’s purposes. We have no obligation to create documents in response to a request. See SPR 15-060. SPR 04-004. SPR 15- 583. We have no obligation to generate new statistical information for a different time period even if we had generated statistics for an earlier time period for the Department’s own purposes. It is legally erroneous by Mr. Rabinovitz to demand that the Department create new statistical information for a particular time period that the Department does not create for its own use… In a January 28, 2026 email to this office and the Department, Mr. Rabinovitz stated the following: DOR has never before withheld the requested information for municipalities with fewer than four retailers. Nor should it do so. The direct problems with the DOR’s logic are as follows: The “or two or three of them” seems arbitrary. DOR seems to suggest that multiple competitive retailers would join together to share their coveted and secret revenue data with each other so they could back into discovering a 3rd or 4th store’s revenue. If the taxpayer data is that sensitive, it defies logic that the 3 or 4 retailers would openly share their data with one another… No Duty to Answer Questions; No Duty to Create Records Please be advised, under the Public Records Law, a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Where Mr. Rabinovitz submitted a question to the Department, I find the Department has no duty under the Public Records Law to answer the question. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Rabinovitz is not satisfied with the resolution of this administrative appeal, please be advised that this office share jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies).

Roger H. Randall, Esq. SPR26/0246 Page 4 February 5, 2026 Sincerely, Manza Arthur Supervisor of Records cc: David Rabinovitz