Jonathan Merrigan v. Cambridge, City of - Law Department (SPR 20231829)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 14, 2023 SPR23/1829 Seah Levy Public Records Access Officer City of Cambridge, Law Department City Hall 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: On August 8, 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, it is my understanding that 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 July 25, 2023, Jonathan Merrigan requested “all accident reports from 7/17- present.” 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 SPR23/1829 Page 2 August 14, 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 August 8th 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: Rawson Merrigan & Litner LLP is a law firm specializing in the practice areas of Bicycle Accidents, Car Accidents, Dog Bites, Personal Injury, and other accident- related incidents. This request is similar to other requests received by the City from commercial companies and law firms, which frequently request all accident reports within a municipality on a repeating, ongoing basis. A second request was received from Jonathan Merrigan on 7/31/2023, requesting all accident reports from the dates 7/21 through to the present. This second request was also sent to over thirty Cities, Towns, and Agencies, confirming that no specific report is sought, and that these requests are commercial in nature. The City anticipates that this will become a recurring weekly request.

Seah Levy SPR23/1829 Page 3 August 14, 2023 Further, the City argues “that these records are being collected and collated for a commercial purpose, in marketing the services of the requestor Rawson Merrigan & Litner LLP. 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 August 8th petition, it is my understanding that the request made by Mr. Merrigan 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, Mr. Merrigan 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: Jonathan Merrigan