James M. Merrigan v. Westfield, City of - Police Department (SPR 20210165)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 1, 2021 SPR21/0165 Robyn Gay Records Access Officer Westfield Police Department 59 Court Street Westfield, MA 01085 Dear Robyn Gay: I have received your petition on behalf of the Westfield Police Department (Department) seeking to charge $25.00 an hour in responding to a request made by Attorney James M. Merrigan of Rawson Merrigan & Litner, LLP. G. L. c. 66, § 10(d)(iv). As required by law, a municipality must furnish a copy of its petition to the requestor. Id. In this matter, Attorney Merrigan requested “all accident reports from 12/10/20 through the present.” Petitions to assess fees 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 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). 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; 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

Roybn Gay SPR21/0165 Page 2 February 1, 2021 and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Current Petition In its January 25, 2021 petition to this office, the Department indicates it “. . . is requesting an assessment of fees for the attached records request from the Law Offices of Rawson Merrigan & Litner, LLP.” The Department further expresses, “[t]his is a request that we are receiving weekly or biweekly. Based on our experience with other records requests of this type, it does appear to be for commercial purposes to either seek out new clients or establish a list of potential clients for the law firm.” 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 January 25th petition and the correspondence provided, it is my understanding that the request made by Attorney Merrigan meets 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 Based on the Department’s petition and my finding that the requests are for a commercial purpose, I approve the Department’s petition to charge $25.00 an hour to produce the responsive documents. 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).

Roybn Gay SPR21/0165 Page 3 February 1, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: James M. Merrigan, Esq.