Karen Hennawy v. Cambridge, City of - Law Department (SPR 20242910)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 30, 2024 SPR24/2910 Seah Levy Records Access Officer City of Cambridge 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: On October 24, 2024, this office received your petition on behalf of the City of Cambridge (City) seeking an extension of time to produce 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 the petition to the requestor, Karen Hennawy, of Haddad Law Firm, P.C. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On October 10, 2024, Ms. Hennawy requested, “all motor vehicle crash reports for the prior two weeks.” 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

Seah Levy SPR24/2910 Page 2 October 30, 2024 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). Request for Additional Time to Produce Records In its petition, the City requests, “a reasonable timeframe to respond to your request of 25 business days.” In support of its request the City provides the following information: Gathering, reviewing, and redacting these requested records for these types of motor vehicle accident responses is a time-consuming process. Each report must be retrieved by the Cambridge Police Department, and then reviewed for information that must be redacted under the law. Examples of such redactions include information which is protected under the Driver’s Privacy Protection Act of 1994; License Information; reporting witness information; personal medical information in instances where accidents involve personal injuries or fatalities; and the home address information of Government Employees when an accident involves a City or State vehicle. A typical weekly range for accident reports for the City of Cambridge may fall anywhere between 15-30 reports. Each time these records must be located they will take 1-2 hours to retrieve. Depending on the complexity of the accident reports, and it may take sixteen or more hours to review and redact these records once they have been retrieved In light of the need to collect and examine the records, and the capacity of the City to produce the records without an extension, the City has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iii). The City is granted an extension of 25 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

Seah Levy SPR24/2910 Page 3 October 30, 2024 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). 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 petition, the City argues that the requests are made for a commercial purpose, and provides the following information in support of its argument: Karen Hennawy is a mail room clerk 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

Seah Levy SPR24/2910 Page 4 October 30, 2024 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. The City believes that this request has been made for commercial purposes. In addition to requesting all accident reports for the prior two weeks, 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. Finally, the City recently received a similar request from an attorney at Haddad Law Firm . . . requested all motor vehicle accident reports for the month of September. The City sent in a Petition to the Supervisor regarding this request, Petition SPR24/2835. The Supervisor issued a Determination in response to this Petition allowing the City to charge actual hourly wages of the lowest paid employee capable of doing the work, after the first two waived hours of work. Based 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 collating information to sell to other companies. This particularly appears to be the case here, where both an attorney and an individual in the Mail Room as sending out requests of this nature, presumably as part of a marketing effort. In correspondence included with its petition, the City indicates that it intends to charge an hourly rate of $46.62 for work by its Law Department. 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 information provided in the City’s petition, it is my understanding that the request made by Karen Hennawy 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 find the City may assess an hourly rate limited to $46.62.

Seah Levy SPR24/2910 Page 5 October 30, 2024 Conclusion Accordingly, I find the City has established good cause for a time extension of 25 business days as described above. Additionally, 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 an hourly rate limited to $46.62. 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, Ms. Hennawy 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: Karen Hennawy