Michael Golner v. Cambridge, City of - Law Department (SPR 20242835)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 21, 2024 SPR24/2835 Seah Levy Public Records Access Officer City of Cambridge, Law Department City Hall 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: On October 15, 2024, this office received your petition on behalf of the City of Cambridge (City) seeking a waiver of statutory limits to fees that may be assessed in responding to the request. 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 the petition to the requestor, Attorney Michael Golner, of Haddad Law Firm, P.C. G. L. c. 66, § 10(d)(iv)(2). On October 1, 2024, Attorney Golner requested “[a]ll accident reports occurring in the City of Cambridge for the month of September, 2024.” Petition to assess fees – Municipalities The 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). It is my understanding that this request was not made 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 SPR24/2835 Page 2 October 21, 2024 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 correspondence dated October 15, 2024 included with the City’s petition, the City petitions “[a] waiver of statutory limitations on the fees that may be assessed of public records and will assess the actual hourly rate of the lowest paid employees capable to undertake these tasks,” and provides the following information: [M]ichael Golner is an attorney with Haddad Law firm. This firm specializes in Personal Injury Law firm, serving the areas of New Jersey, New York, Florida, and surrounding areas. The practice areas of specialized service for this law firm include Car and Truck Accidental, Motorcycle accidents, and Uber and Lyft accidents. The law firm therefore has a particular and specific interest in identifying the victims of motor vehicle accidents to the benefit of its business.

Seah Levy SPR24/2835 Page 3 October 21, 2024 The City believes that this request has been made for commercial purposes. In addition to requesting all accident reports for the month of September, without identifying a specific accident or victim, the requester has inquired as to whether it is possible to set up this request on an ongoing basis, in order to receive all motor vehicle accident reports created by the City of Cambridge. … [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 Haddad Law Firm. 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 for 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 October 15th petition and the correspondence provided, it is my understanding that the request made by Attorney Golner 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). 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 $46.62 an hour to produce the responsive documents. 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, Attorney Golner 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).

Seah Levy SPR24/2835 Page 4 October 21, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Michael Golner, Esq.