Daniel Toshner v. Cambridge, City of - Office of the City Solicitor (SPR 20230428)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 10, 2023 SPR23/0428 Seah Levy Records Access Officer City of Cambridge 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: On March 3, 2023, this office 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. c. 66, § 10(d)(iv). As required by law, the City furnished a copy of this petition to the requestor. Id. On February 16, 2023, Daniel Toshner submitted a public records request seeking motor vehicle crash reports for “all motor vehicle accidents that occurred in month of January 2023.” Petition 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). As discussed below, it is my determination that the request is for a commercial purpose. 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 SPR23/0428 Page 2 March 10, 2023 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 March 3rd petition, the City “asks that it be allowed to charge for all hours worked on these requests, with no waiver of the initial two hours; additionally, the City asks to be allowed to pay the actual rate of the lowest paid employee [in the Law Department] capable of performing the task of redaction and review of these records.” The City indicates that it intends to charge $40.72 per hour for search and copying time by the Law Department. The City states that Mr. Toshner “is a researcher with Roadside Response, ‘a leading roadside environmental cleaning company in WA, NC, NV, CA and currently expanding into other states.’ Mr. Toshner has requested the City provide all accident reports for the month of January on behalf of Roadside Response. The requester is not seeking specific reports on behalf of an existing client and appears to be engaged in commercial research regarding business opportunities in the City of Cambridge.” The City further contends that “[b]ased on the information available to the City, we believe that these records are being collected and collated for a commercial purpose, in marketing the services of the requestor Roadside Response. The City has received such requests for accident reports in the past, always from companies or law firms interested in these reports either for marketing their services, or collating information to sell to other companies.” The term “commercial purpose” as used in the Public Records Law 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 March 3rd petition, it is my understanding that the request made by Mr. Toshner 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).

Seah Levy SPR23/0428 Page 3 March 10, 2023 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 a fee limited to $40.72 per hour. See G. L. c. 66, § 10(d)(iv). 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: Daniel Toshner