Musgrave, Shawn v. Massachusetts Bay Transportation Authority (SPR 20150153)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 6, 2015 SPRlS/153 Ms. Susan M. Krupanski, Esq. Assistant General Counsel Massachusetts Bay Transportation Authority Ten Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Krupanski: I have received a petition from Shawn Musgrave appealing the January 13, 2015 written estimate from the Massachusetts Bay Transportation Authority (MBTA) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Musgrave requested an electronic copy of the application, approval notification/award letter and acceptance materials for the Department of Homeland Security grant(s) awarded to the MBTA to underwrite a live video surveillance system installation. Your January 13, 2015 written estimate states that it will take fifteen (15) hours at an hourly rate of fifty-nine dollars and 89 cents ($59.89) to search for the responsive records and to segregate any exempt material from the responsive records. Additionally, the MBTA is charging for copies of approximately two hundred (200) pages of records at twenty cents ($.20) per page, and postage of four dollars ($4.00) to mail the records to Mr. Musgrave. The total cost to Mr. Musgrave is nine hundred forty-two dollars and thirty-five cents ($942.35). Mr. Musgrave has appealed the cost of the written estimate, in particular the number of hours for search and segregation at a high hourly rate of $59.82. It is my understanding that this is the hourly rate of the Senior Security Director at the MBTA, and that the MBTA claims that this Director is the lowest paid person who can search and segregate any sensitive security data, including any information relating to Homeland Security. A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Susan M. Krupanski, Esq. SPRlS/153 Page Two May 6, 2015 provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee of twenty cents ($.20) per page for a photocopy of a public record and fifty cents ($.50) per page for a computer printout of a public record. See 950 C.M.R. 32.06(1)(a). In addition to the copying fee, the Regulations provide that in cases where search or segregation time is necessary a custodian of records may charge a pro-rated fee based on the hourly rate of the lowest paid employee who is capable of performing the task. 950 C.M.R. 32.06(1)(c). The Regulations define "search time" as the time needed to locate, pull from the file, copy and refile public records, and "segregation time" as the time used to redact data that is exempt from non-exempt material. 950 C.M.R. 32.03. The search and segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § 1O (a). The MBTA has not provided enough support to justify the hourly rate assessed for both search for and segregation of the records. In cases where two separate individuals can be utilized to conduct separate tasks, the custodian should do so; allowing the lowest paid hourly rate of an individual who is capable of conducting the search, and the lowest paid hourly rate of an individual who is capable of conducting the segregating of exempt material from the records prior to disclosure. It is not clear why a lower paid employee could not have searched for the responsive records, and why a lower paid employee in the Security Office could not have conducted the segregation of the records, even with a little supervision from the Senior Security Officer. I find that MBT A has not met its burden of proving that the estimate is reasonable and in compliance with the Public Records Law Access Regulations. Fee Waiver Mr. Musgrave has requested a waiver of all fees, explaining that the records will be made available to the general public free of charge as part of the public information service at MuckRock.com. I understand that the MBTA has chosen not to waive the fees in this public records request. While this office encourages custodians to waive fees in providing public records, the Supervisor of Records has no authority to mandate that a custodian of records do so. See 950 C.M.R. 32.06. Order I find that the MBTA's assessment of a $59.89 hourly rate to conduct both search and segregation at a cost of$898.35 is unreasonable, and must be reduced. Accordingly, the MBTA

Ms. Susan M. Krupanski, Esq. SPR15/153 Page Three May 6, 2015 is hereby ordered to provide Mr. Musgrave with a revised estimate, which reflects a reduction in the hourly rate for search and segregation, and provided in a manner consistent with the Public Records Law and its Access Regulations within ten (1 0) days. This appeal is closed. cc: Mr. Shawn Musgrave