Jonathan Merrigan v. Wilbraham, Town of - Police Department (SPR 20250787)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 25, 2025 SPR25/0787 Chief Edward Lennon Wilbraham Police Department 2780 Boston Road Wilbraham, MA 01095 Dear Chief Lennon: On March 21, 2025, this office received your petition on behalf of the Wilbraham Police Department (Department) seeking a waiver of statutory limits on fees that may be assessed in responding to a request. G. L. c. 66, § 10(d)(iv). As required by law, the Department furnished a copy of this petition to the requestor, Jonathan Merrigan, of Rawson Merrigan & Litner, LLP. G. L. c. 66, § 10(c). On March 12, 2025, Mr. Merrigan requested “all motor vehicle accident reports from March 3, 2025 to March 10, 2025.” 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. 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 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

Edward Lennon SPR25/0787 Page 2 March 25, 2025 redaction or segregation; 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 its petition, the Department requests to charge a fee of $31.33 per hour and argues that the request is made for a commercial purpose. In support of its argument, the Department provides the following information: This request is for a commercial purpose. This request involves the use of the information to advance the requester’s strategic business interests in a manner that the requester can reasonably expect to make a profit. In Case SPR20/2599 this same requester made this same request to the Dedham Police Department. The Dedham Police Department petitioned the supervisor of public records to charge $35.56 per hour which was subsequently authorized by your office in that case. 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

Edward Lennon SPR25/0787 Page 3 March 25, 2025 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 Department’s 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, § 10(d)(ix); see also SPR20/2599 Determination of the Supervisor of Records (January 5, 2021). Conclusion As described above, based on the Department’s petition and my finding that the request was made for a commercial purpose, I approve the Department’s petition for a waiver of statutory limits. Accordingly, the Department may assess a fee limited to $31.33 per hour. 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