CRU Lexis Nexis v. Framingham, City of (SPR 20232022)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 1, 2023 SPR23/2022 Paul J. Iversen Records Access Officer City of Framingham 150 Concord Street Framingham, MA 01702 Dear Mr. Iversen: On August 28, 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); see also 950 C.M.R. 32.06(4). As required by law, I understand 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). From August 14, 2023 to August 28, 2023, LexisNexis Risk Solutions submitted 68 public records requests for “crash reports” to the City of Framingham. Petitions 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 SPR23/2022 Page 2 September 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) shall 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). Request for Additional Time to Produce Responsive Records In its petition, the City requests an extension of 30 business days and provides the following information in support of its request: [T]he volume of requests by the same requestor is placing an undue burden on the other responsibilities of the City. After recent staffing departures the records department is 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 capacity of the City to produce the request without the extension, the City has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). Accordingly, the City is granted an extension of 30 business days. 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

Paul J. Iversen SPR23/2022 Page 3 September 1, 2023 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 August 28th petition, the City argues that the request is made for a commercial purpose, and provides the following information in support of its argument: The requests covered by this petition are all 68 public record requests made to the City of Framingham by an entity describing itself as “CRU Lexis Nexis,” also known as the entity LexisNexis Risk Solutions, a global data and analytics company with headquarters in Alpharetta, GA from Monday, August 14th, 2023 to Monday, August 28th, 2023. LexisNexis Risk Solutions is a subsidiary of RELX, a British‐Dutch multinational information and analytics company headquartered in London, with revenues of over £7 Billion in 2021. 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

Paul J. Iversen SPR23/2022 Page 4 September 1, 2023 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. Please be advised that 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 petition and the information provided above, 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, § 10(d)(ix); see also SPR20/2599 Determination of the Supervisor of Records (January 5, 2021). Based on the City’s petition and my finding that the requests are for a commercial purpose, I approve the City’s petition to assess a fee for segregation and redaction. Conclusion Accordingly, I find the City has established good cause for a time extension of 30 business days as described above. Additionally, where the request is for a commercial purpose, the City may assess a fee for segregation and redaction. 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, CRU Lexis Nexis 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, §§ 10(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: CRU Lexis Nexis