Sydney Bushard v. Cambridge, City of - Office of the City Clerk (SPR 20211610)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 1, 2021 SPR21/1610 Seah Levy, RAO Office of the City Clerk City of Cambridge 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received your petition on behalf of the City of Cambridge (City) requesting a waiver of statutory limits on fees that may be assessed in responding to the requests. G. L. 66, § 10(d)(iv). As required by law, it is my understanding that the City furnished a copy of this petition to the requestor. Id. Sydney Bushard of Kelly & Associates Injury Lawyers requested “accident reports from 6/7-6/13.” 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, § 10(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 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). 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

Seah Levy, RAO SPR21/1610 Page 2 July 1, 2021 Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Current Petition In its June 28, 2021 petition, the City requests “a waiver of the statutory limits on fees that may be assessed in responding to requests from the Company known as Kelly & Associates Injury Lawyers (a/k/a 1-800-Law Guys) and the individual known as Sydney Bushard, for motor vehicle accident reports.” The City also requests “a waiver both in terms of assessing fees for all hours billed, as well as for the actual hourly rate of the individual conducting the work.” The City states in the petition, “Mr. Bushard has been making intermittent requests on behalf of Kelly & Associates Injury Attorneys since 1/21/2021. To date, eight such requests have been made. In each case, the requests are for copies of all reports of motor vehicle accidents that have taken place in the City during that weekly time period.” The City explains, “[b]ased on the information available to the City, [the City] believes that these records are being collected and collated for a commercial purpose, in marketing the services of the requestor Law Firm.” The City “anticipates that these requests will continue, and that at a rate of $25 an hour, the statutory cumulative waived fees on such requests would be in the amount of $2,600 over a one year period, or in the amount of over approximately $3,500 if charged the actual hourly rate of the staff members undertaking to fulfill the request.” The City requests that since the “records are clearly being used for a commercial purpose which benefits the requester’s strategic business interests, the City requests a statutory waiver of the limitation of fees on the first two hours of work with regards to the attached request as well as all future requests made by this individual or these companies.” 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). I find that the request for weekly accident reports is intended to advance the requestor’s strategic business interests. Consequently, this purpose meets the statutory definition of “commercial purpose” within the Public Records Law. See G. L. c. 66, § 10(d)(ix); see also ----- SPR18/1318 Determination of the Supervisor of Records (September 5, 2018); SPR20/0304 Determination of the Supervisor of Records (February 24, 2020); SPR20/2224 Determination of

Seah Levy, RAO SPR21/1610 Page 3 July 1, 2021 the Supervisor of Records (November 23, 2020); SPR20/2223 Determination of the Supervisor of Records (November 23, 2020). Conclusion Based on the City’s petition and my finding that the requests are for a commercial purpose, I approve the City's petition to charge fees for segregation and redaction. Ms. Buchard may seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10(c), 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Sydney Bushard