Melissa Keith v. Springfield, City of - Office of the City Clerk (SPR 20221622)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 21, 2022 SPR22/1622 Justin P. Morin Interim Public Records Coordinator City of Springfield 36 Court Street, Room 210 Springfield, MA 01103 Dear Mr. Morin: On July 14, 2022, this office received your petition on behalf of the City of Springfield (City) seeking a waiver of statutory limits on fees that may be assessed in responding to a public records request. G. L. c. 66, § 10(d)(iv). As required by law, the City furnished a copy of its petition to the requestor. Id. On July 11, 2022, Melissa Keith, of George Butler Adjusters, Inc., requested a “…Body-Worn Camera (BWC) video.” 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 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

Justin P. Morin SPR22/1622 Page 2 July 21, 2022 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 July 14th petition, the City “. . . requests a waiver of the statutory limits to fees assessed to segregate and/or redact public records.” The City “…believes payment is justified because it will be used for commercial purposes and will take an extensive effort to produce these Body-Worn Camera (BWC) videos.” As a result, the City seeks to charge the BWC Analyst’s hourly rate of $30.60, the BWC Supervisor’s hourly rate of $47.00, and the BWC Legal Advisor’s hourly rate of $41.59. The City posits that “[r]esponding to requests for Body-Worn Camera (BWC) video(s) is very labor intensive. It requires locating the requested video(s), reviewing each video at least twice to determine if redactions are required pursuant to M.G.L. Chapter 4, Section 7(26), and then making necessary edits to the BWC footage. The BWC Unit Supervisor locates the videos, if any, and then oversees the work of the BWC Redaction Analyst. Once the final video is ready, the BWC Legal Advisor meets with the Redaction Specialist to watch the footage.” In a letter to this office dated July 14, 2022, Ms. Keith states “…please know that our office is investigating an insurance claim on behalf of Vermont Mutual Insurance Company…regarding an incident on or about 5/26/22.” 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 July 14th petition and the correspondence provided, it is my understanding that the request made by Ms. Keith 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 City’s petition and my finding that the request is for a commercial purpose, I approve the City’s petition to assess a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). Please be advised, municipalities may not assess a fee for the first two hours of

Justin P. Morin SPR22/1622 Page 3 July 21, 2022 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). Sincerely, Manza Arthur Supervisor of Records cc: Melissa Keith Stephen G. Roche, Esq.