Jessica Gray v. Fall River, City of - Retirement Board (SPR 20200304)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 24, 2020 SPR20/304 Lee Ann Torres Fall River Retirement Board 30 Third Street Suite 301 Fall River, MA 02722 Dear Lee Ann Torres: I have received your petition on behalf of the Fall River Retirement Board (Board) seeking to charge a fee of $59.00 per hour in responding to a request made by Jessica Gray of Pitch book Data (Pitchbook). G. L. c. 66, § 10( c ). As required by law, it is my understanding that the Board furnished a copy of this petition to the requestor. Id. In a letter dated January 21, 2020, Ms. Gray requested 15 categories of records concerning the Board. Petitions to Assess Fees A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10( d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § lO(d)(i). 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. G. L. c. 66, § 10( d)(iii). Where appropriate, municipalities may include as paii 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, § lO(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, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). Petitions relating to fees must be submitted to the Supervisor within ten business days after 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

Lee Ann Torres SPR20/0304 Page 2 February 24, 2020 receipt of a request for public records. 950 C.M.R. 32.06( 4)(g). Current Petition In your petition dated February 11, 2020, you state the Board seeks "to assess an hourly fee in excess of $25 per hour to respond to Pitchbook's public record request on January 21, 2020." You further note, "[t]he Board has determined that this request is for a commercial purpose, and the Board believes the hourly rate to be imposed in responding this request should be $59.00, as this is the hourly rate of the only Board employee who is qualified to review and redact, if necessary, the documents that are responsive to this request." In her letter to the Board dated January 28, 2020, Ms. Gray states, "Pitchbook is a private markets research firm, and one of our goals is to comprehensively track the landscape with regards to private funds and institutions investing with these funds." It is my understanding that Ms. Gray confirmed her request is for a commercial purpose in a follow up email dated February 10, 2020. 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 repmiing 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 Board's February 14th petition and the coiTespondence provided, it is my understanding that the request made by Ms. Gray meets the statutory definition of "commercial purpose" within the Public Records Law. See G. L. c. 66, § 10( d)(ix); see also SPRl 8/1318 Determination of the Supervisor of Records (September 5, 2018). Conclusion For the reasons described above, I find the Board may assess a fee for the time spent to search for, segregate and redact these requested records at $59.00 per hour. Ms. Gray may seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ IO(c), IOA(c).

Lee Ann Torres SPR20/0304 Page 3 February 24, 2020 Sincerely, Rebecca S. _Murray Supervisor of Records cc: Jessica Gray Michael Pasternak