Jonathan Merrigan v. Southborough, Town of - Police Department (SPR 20251728)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 24, 2025 SPR25/1728 Sean P. McCarthy Southborough Police Department 32 Cordaville Road Southborough, MA 01772 Dear Mr. McCarthy: On June 17, 2025, this office received your petition on behalf of the Southborough Police Department (Department) seeking permission to waive statutory limits to fees and 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, it is my understanding that the Department furnished a copy of the petition to the requestor, Jonathan Merrigan, of Rawson, Merrigan & Litner, LLP. G. L. c. 66, § 10(c); G. L.c. 66, § 10(d)(iv)(2). On June 17, 2025, Mr. Merrigan requested the following: [1.] Motor Vehicle Crash Police Reports (for incidents occurring 05/28/2025 through 06/16/2025; and [2.] Pedestrian/MVA Crash Police Reports (for incidents occurring 05/28//2025 through 06/16/2025; 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). 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

Sean P. McCarthy SPR25/1728 Page 2 June 24, 2025 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). Petition to Assess Fees In its petition, the Department requests, “permission to charge the following fees associated with the segregation and redaction of the requested records.” In support of its petition, the Department provides the following information: [W]e will be required to make certain redactions to those records in accordance with the Public Records Law. Exemption (c): This exemption applies to “personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation.”

Sean P. McCarthy SPR25/1728 Page 3 June 24, 2025 The records requested contain information which must be redacted from the records pursuant to this exemption. The records requested contain information which, if disclosed, would constitute an unwarranted invasion of personal privacy. Such information contains intimate details and the privacy interests involved outweigh the public interests in the disclosure of that information. In making that determination, the department has considered the following factors: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Department of Agricultural Resources, 477 Mass. 280, 292 (2017). In light of the Department’s petition, I find that the Department has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the Department may assess a fee for the segregation and redaction of such exempt material. See G. L. c. 66, § 10(d)(iv). Commercial Purpose In its June 17th petition, the Department argues that the request is made for a commercial purpose, and requests that it be allowed to assess a fee of $29.35 per hour. The Department provides the following information in support of its argument: It is in my experience that public records requests for all accidents/reports within a time period, rather than with a client’s name and date of the accident, are being used for commercial purposes. If the requester was looking to obtain a report for a specific client, they would not need all reports for a week of time. With this blanket request, four weeks in a row for a specific period of time for all accident reports in our jurisdiction, I am confident that the request is for commercial purposes. This data being requested can be used to expand the Rawson Merrigan & Litner, LLP business and clientele base by receiving access to accident victims’ information. 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.

Sean P. McCarthy SPR25/1728 Page 4 June 24, 2025 G. L. c. 66, § 10(d)(ix). Based on the Department’s petition, it is my understanding that the request made by the requestor 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 Based on the Department’s petition and my finding that the request was made for a commercial purpose, I approve the Department’s fee petition. Accordingly, the Department may assess a fee for segregation and redaction limited to $29.35 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