CRU Lexis Nexis v. Framingham, City of (SPR 20230148)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 1, 2023 SPR23/0148 Paul J. Iversen Records Access Officer Mayor’s Office City of Framingham 150 Concord Street Framingham, MA 01702 Dear Mr. Iversen: On January 25, 2023, 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 the petition to the requestor, CRU Lexis Nexis. Id. In this matter, CRU Lexis Nexis seeks numerous crash 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 SPR23/0148 Page 2 February 1, 2023 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 January 25, 2023 petition, the City asserts: Each requested record will take approximately 10 minutes to segregate and/or redact…. [T]he City requests permission for a single extension of 30 business days to provide the records covered by this petition, as 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 resignations 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. Having the additional time 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 that 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 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

Paul J. Iversen SPR23/0148 Page 3 February 1, 2023 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 January 25th petition, the City states that, [it is] request[ing] permission to charge $59/hour to complete the requests. Due in part to the volume of these requests from this particular requestor, combined with staff attrition in a difficult hiring environment, the City will require Police officers to work overtime to complete these requests. 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 City also contends that: These 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. 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

Paul J. Iversen SPR23/0148 Page 4 February 1, 2023 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 January 25th petition, it is my understanding that the request made by CRU Lexis Nexis 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 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). Sincerely, Manza Arthur Supervisor of Records cc: CRU Lexis Nexis