Annie Brown v. Cambridge, City of - Law Department (SPR 20230480)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 17, 2023 SPR23/0480 Seah Levy Public Records Access Officer City of Cambridge, Law Department City Hall 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: On March 10, 2023, this office received your petition on behalf of the City of Cambridge (City) seeking permission to charge for time spent segregating or redacting responsive records, and a waiver of statutory limits on fees that may be assessed in responding to the request. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the City furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On February 24, 2023, Ms. Brown requested “all MVA reports from Feb 15-22, 2023.” Petition to Assess Fees – Municipalities 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. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). 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 SPR23/0480 Page 2 March 17, 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Municipalities may not assess a fee for the first 2 (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. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). Current Petition; Commercial Purpose In its March 9th petition, the City requests to charge for time spent segregating and redacting records, and to charge an hourly rate of $40.72. The City provides the following information: Annie Brown is the owner and founder of Prospect Providers, a personal injury marketing company known for being “the number one resource for ethically obtained MVA [Motor Vehicle Accident] reports in the United States.” Annie Brown has requested the City provide all accident reports between February 15- 22, 2023, on behalf of Prospect Providers. 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 anticipates that this will be a recurring weekly request. Further, the City argues “that these records are being collected and collated for a commercial purpose, in marketing the services of the requestor Prospect Providers. The City has

Seah Levy SPR23/0480 Page 3 March 17, 2023 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 9th petition, it is my understanding that the request made by Ms. Brown 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 charge for time spent segregating or redacting responsive records, and to charge a fee limited to $40.72 per hour. See G. L. c. 66, § 10(d)(iv). Please be advised that municipalities may not assess a fee for the first two hours of employee time to search for, compile, segregate, redact or reproduce records unless the municipality has 20,000 people or less. See G. L. c. 66, § 10(d)(iii). Please note, Ms. Brown 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: Annie Brown