CRU Lexis Nexis v. Framingham, City of (SPR 20221965)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 30, 2022 SPR22/1965 Paul J. Iversen Records Access Officer Mayor’s Office City of Framingham 150 Concord Street Framingham, MA 01702 Dear Mr. Iversen: On August 25, 2022, this office received your petition on behalf of the City of Framingham (City) seeking an extension of time to produce records and a waiver of statutory limits on fees that may be assessed in responding to a public records request. G. L. c. 66, § 10(c); G. L. c. 66, § 10 (d)(iv). As required by law, it is my understanding that the City furnished a copy of this petition to the requestor, CRU Lexis Nexis. Id. In this matter, CRU Lexis Nexis seeks numerous auto accident reports. Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. 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

Paul J. Iversen SPR22/1965 Page 2 August 30, 2022 G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) must provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Extension of Time to Produce Responsive Records In its August 25th petition, the City “…petitions the Supervisor of Records under G.L. c. 66, §10, (c) for a single extension of 30 business days to provide records for all requests covered by this petition…” The City indicates that “[t]he requests covered by this petition are all 119 requests made by LexisNexis Risk Solutions from the dates July 28th, 2022 to August 25th, 2022.” The City “reiterates all information conveyed in relation to petitions SPR22/1555 and SPR22/1724…” In the petition for SPR22/1724, the City argued that, …the volume of requests by the same requestor is placing an undue burden on the other responsibilities of the City. In addition to contending with a difficult hiring environment, the Police Records department has recently faced multiple resignations, including the Records manager, that make completing the requests even in 25 business days extremely difficult and burdensome. The records department is already stretched to the limit of its work capacity, without including any requests by this requestor. The City is currently in the process of attempting to re-staff the Police Records department and hopefully will have more employees in the coming months. Having 90 business days to respond to these requests would provide much needed relief to the City, and would serve only to potentially delay profits being directed to the coffers of LexisNexis, not impacting the public interest in any way. I find in light of the need to collect and segregate the request, as well as the capacity of the City to produce the request without an extension, and that the request is part of a series of requests from the same requestor, the City has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(ii). The City is granted an extension of 30 business days. Petition to assess fees The Supervisor may approve a petition from a municipality to charge for time spent

Paul J. Iversen SPR22/1965 Page 3 August 30, 2022 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; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Current Petition In its August 25th petition, the City seeks “…to charge $59/hour for time segregating or redacting records that are being requested solely for a commercial purpose.” The City’s August 25th petition references the July 27th petition. The City’s July 27th petition stated the following: The requests are being made by a commercial enterprise whose business is one that “provides data and technology services, analytics, and predictive insights…to a wide range of industries.” These records are being requested not for the public interest, but for the purpose of advancing Lexis Nexis’s strategic business interests in a manner that the requestor can reasonably expect to make a profit. Specifically, these are all requests for crash reports being requested in order to commercially profit from insurance-company clients. For context, the City of Framingham previously utilized a LexisNexis product, Command Center Crash Reporting, until February 22, 2022. LexisNexis made 13 records requests to the City to that date in 2022. The number of requests LexisNexis has made has increased every single month since then, with June totaling 113 requests and July likely to exceed that number. Each requested record will take approximately 10 minutes to segregate and/or redact. As a result, to complete all requests will take the [City] approximately 14.83 hours. The City requests permission to charge $75/hour for all 12.83 hours after accounting for two hours of employee time in aggregate. This is necessary because the deluge of requests made by LexisNexis has necessitated the use of police officer overtime to fulfill these requests.

Paul J. Iversen SPR22/1965 Page 4 August 30, 2022 In an email dated August 1, 2022, the City states it “…would like to amend its request of $75/hour to $59/hour.” The City notes, “[u]pon further review, the OT rate for the officers who need to work OT to complete these requests are $50.95/hour and $68.08/hour, respectively. Averaging these two costs and rounding down gets to $59/hour… Their titles are Police Sergeant and Police Officer…at this time, the police records department is so understaffed that these are the only individuals who are capable of fulfilling the requests.” 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 August 25th petition, which references the City’s July 27th petition and the correspondence provided, it is my understanding that the requests made by CRU Lexis Nexis meet 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 request is for a commercial purpose, I approve the City’s petition to charge a fee in excess of $25.00 per hour. With respect to time, I find the City has established good cause for a time extension of 30 business days as described above. See G. L. c. 66, § 10(d)(iv). 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).

Paul J. Iversen SPR22/1965 Page 5 August 30, 2022 Sincerely, Manza Arthur Supervisor of Records cc: CRU Lexis Nexis