Helena Alvés v. Revere, City of - Office of the City Clerk (SPR 20220809)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 12, 2022 SPR22/0809 Ashley E. Melnik City Clerk City of Revere 281 Broadway Revere, MA 02151 Dear Ms. Melnik: I have received your petition on behalf of the City of Revere (City) seeking a waiver of statutory limits on fees that may be assessed in responding to a request for public records. G. L. c. 66, § 10(d)(iv). As required by law, a municipality must furnish a copy of its petition to the requestor. Id. On March 24, 2022, Helena Alvés of The Planning and Zoning Resource Company requested, “…copies of open/unresolved zoning, building and fire code violations on file, certificates of occupancy, variances, conditional/special use permits (excluding signage) and a final approved site plan (excluding grading, landscaping, mechanical, electrical etc.) for [an identified address].” 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 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

Ashley E. Melnik SPR22/0809 Page 2 April 12, 2022 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. Current Petition In its April 6, 2022 petition to this office, the City states, “I respectfully submit this petition on behalf of the City of Revere, to request that the City can charge the hourly rate of the Building Inspector which exceeds $25.00 to compile this information in response to this request. The files for this particular development are large and not all responsive documents are stored electronically (i.e. large building plans).” The City contends that “[t]his request is clearly for commercial purposes. According to their website, this company resells the public records for the purpose of advancing their strategic business interests in a manner that they can reasonably expect to make a profit… [the City] called this company to ask how much they charge for their document acquisition services and the staff person indicated that they charge clients approximately $600 to obtain municipal documents.” 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 City’s April 6th petition and the correspondence provided, it is my understanding that the request made by Ms. Alvés 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 In light of the City’s petition and my finding that the requests are for a commercial purpose, I approve the City’s petition to charge a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). Please note 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).

Ashley E. Melnik SPR22/0809 Page 3 April 12, 2022 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). Sincerely, Rebecca S. Murray Supervisor of Records cc: Helena Alvés