CRU Lexis Nexis v. Framingham, City of (SPR 20230540)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 28, 2023 SPR23/0540 Paul J. Iversen Records Access Officer Mayor’s Office City of Framingham 150 Concord Street Framingham, MA 01702 Dear Mr. Iversen: On March 21, 2023, this office received your petition on behalf of the City of Framingham (City) seeking an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. 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. G. L. c. 66, § 10(c). In separate requests from February 17, 2023 to March 21, 2023, CRU Lexis Nexis sought 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 SPR23/0540 Page 2 March 28, 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 March 21, 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. While there has been a recent hire, 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 Lexis Nexis, not impacting the public interest in any way. I find that in light of the need to collect and segregate the records, as well as the capacity of the City to produce the records without an extension, and that the requests are 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). As further explained in the paragraph below, the City is granted an extension of 30 business days for records requests received on February 18, 2023 or after. However, the City submitted its petition on March 21, 2023, more than twenty business days after receipt of some of the requests. In light of the fact that the City has not demonstrated it submitted a timely petition, an extension of time cannot be granted for records requests received on February 17, 2023. 950 C.M.R. 32.06(4)(d). Petition to assess fees The Supervisor may approve a petition from a municipality to charge for time spent

Paul J. Iversen SPR23/0540 Page 3 March 28, 2023 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 In its March 21st petition, the City states that:

Paul J. Iversen SPR23/0540 Page 4 March 28, 2023 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 City requests permission to charge $25/hour to complete the requests. This is lower than the hourly rate of the lowest paid employee capable of performing such tasks. 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 March 21st petition, 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). However, the City submitted its petition on March 21, 2023, more than ten business days after receipt of some of the records requests. In light of the fact that the City has not demonstrated it submitted a timely petition for some of the records requests, permission to charge for time spent segregating or redacting responsive records cannot be granted for requests received by the City on or before March 6, 2023. 950 C.M.R. 32.06(4)(g). Conclusion Based on the City’s petition and my finding that the requests are for a commercial purpose, I find the City may assess a fee for segregation and redaction, as discussed above, for requests received from March 7th through March 21st. However, permission to charge for time spent segregating or redacting responsive records cannot be granted for requests received by the City on or before March 6, 2023. 950 C.M.R. 32.06(4)(g). 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). However, an extension of time cannot be granted for records requests received on February 17, 2023. 950 C.M.R. 32.06(4)(d).

Paul J. Iversen SPR23/0540 Page 5 March 28, 2023 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