Heather Carito v. Massachusetts Bay Transportation Authority (SPR 20171516)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 3, 2017 SPR17/1516 Julie Ciollo, Esq. Assistant General Counsel/RAO Massachusetts Bay Transpmiation Authority Ten Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Heather Carit o appealing the response of the Massachusetts Bay Transpmiation Authority (MBTA) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Ms. Carito requested a copy of all emails, meeting notes and memoranda from and to various individuals between July 1, 2017 and October 12, 2017 regarding Casey Arborway project jet fans. Ms. Carito indicated that "[k]ey words may include, but are not limited to: Casey Arborway fans; Jet fans: Jet fan SCADA system; Amtrak; Casey 81678; and Ventilation.'' The MBTA states in its initial October 23rd response that the search for the responsive records resulted in 1,039 emails, which will require that the MBTA expend over 50 hours in personnel time to respond to the request. The response specifically states, "[t]his places an undue burden on the MBTA, given the lack ofresources currently available to respond to not only your request, but numerous other, similar public records, requests, and is unreasonable in light of the Public Records Law." You asked if Ms. Carito could either provide a reasonable description of the requested records or narrow or modify her search parameters so that a less burdensome response may be managed. Ms. Carito petitioned this office, and an appeal was opened. In her petition, Ms. Carito states that the key words were only included to ensure that emails about" Casey Overpass fans" are included along with "Casey Arborway fans," Casey "vent" issues , and Casey "ventilation" issues. Ms. Carito questions why the MBTA cannot provide her with a fee estimate for the 1,039 emails that the MBTA identified in a search. 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

Julie Ciollo, Esq. SPR17/1516 Page2 November 3, 2017 Fee estimates An agency 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). Agencies may not assess a fee for the first four hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d )(ii). Where appropriate, agencies 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. 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, § lO(d)(iv). See G. L. c. 66, § lO(d)(ii); 950 CMR 32.06(4). In an October 31st telephone discussion with an attorney in the Public Records Division, you indicated that the MBTA would provide Ms. Carito with an estimate for the 1,039 emails that were found by the MBTA's Information Technology Division (IT) that may be responsive to Ms. Carito' s request. You infom1ed this office that you would provide Ms. Carit o with a written fee estimate and would explain how a search of emails is conducted by IT. On November 1st, you provided Ms. Carito with a fee estimate for the requested records. Conclusion Accordingly, whereas the MBTAhas provided Ms. Carito with a fee estimate for the requested records, I will consider this administrative appeal closed. Ms. Carito may appeal the substantive nature of the November 1st fee estimate within ninety calendar days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Heather Carito