Jonathan Merrigan v. Southborough, Town of - Police Department (SPR 20251957)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 14, 2025 SPR25/1957 Lieutenant Sean P. McCarthy Records Access Officer Southborough Police Department 32 Cordaville Road Southborough, MA 01772 Dear Lieutenant McCarthy: On July 8, 2025, this office received your petition on behalf of the Southborough Police Department (Department) requesting permission to charge for time spent segregating and 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, Attorney Jonathan Merrigan, of Rawson Merrigan & Litner, LLP. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On June 30, 2025, Attorney Merrigan requested the following records: [1] Motor Vehicle Crash Police Reports (for incidents occurring 06/17/2025 through 06/30/2025)[;] [2] Pedestrian/MVA Crash Police Reports (for incidents occurring 06/17/2025 through 06/30/2025). 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). 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

Lieutenant Sean P. McCarthy SPR25/1957 Page 2 July 14, 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 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). 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). Petition to Assess Fees In its petition, the Department requests permission “to charge a fee of $58.70 for the segregation and redaction charges associated with this request and response....The lowest paid employee who has the necessary skill to complete the segregation and redaction is, [a named individual], whose normal hourly rate is $29.35. This is because she is a secondary records access officer and the lowest paid one certified to understand the public records law.”

Lieutenant Sean P. McCarthy SPR25/1957 Page 3 July 14, 2025 The Department additionally states, “in furtherance of this petition, we further state that the request is for a commercial purpose....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 this section 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 Department’s July 8th petition, it is my understanding that the request made by Attorney Merrigan meets 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 In light of the Department’s petition and my finding that the request is for a commercial purpose, I approve the Department’s petition to charge $29.35 an hour to produce the responsive documents. See G. L. c. 66, § 10(d)(iv). Please note 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 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, §§ 10(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Jonathan Merrigan, Esq.