Amy Richards v. Massachusetts Bay Transportation Authority (SPR 20180108)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 31, 2018 SPR18/108 Julie A. Ciollo, Esq. Assistant General Counsel MBTA Law Department 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received your petition on behalf of the Massachusetts Bay Transportation Authority (MBTA) requesting to charge for time spent segregating or redacting public records in responding to a request made by Amy Richards. G. L. c. 66, § lO(d)(iv). As required by law, the MBTA provided a copy ofthis petition to the requestor. G. L. c. 66, § 10(d)(iv)(2). Ms. Richards requested "all purchasing records from FY2013 to FY2015. The request is limited to readily available records without physically copying, scanning, or printing paper documents." Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from an agency 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 agency to comply with the request. G. L. c. 66, § lO(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 an agency's petition to allow the agency 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, § lO(d)(iv). It is my determination that the request is for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the agency to comply with the request. The Supervisor must consider 1) if 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

Julie A. Ciollo, Esq. SPR18/108 Page 2 January 31, 2018 fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § lO(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. C. 66, § lO(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, § lO(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 under a petition under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). Current petition In its petition dated January 24, 2018, the META seeks permission to charge for "the first four hours of work associated with responding to this request" and "for segregation and redaction of the responsive records." You indicate that in response to the META' s inquiry for the purpose ofthe request, Ms. Richards stated "[t]he records will be used for commercial purposes." Further,. the MBTA's records access officer advises the "request will require numerous hours of employee time, not only to segregate the requested records but to redact those records per exemptions to the Public Records Law." The META explains "these redactions include personally identifying information that the META intends to withhold under Exemption (c), information redacted under Exemption (g), and any other exemptions that may be applicable." Given these records are being used for a commercial purpose and include private identifying information; the META has met its burden to explain how the request could not prudently be completed without redaction or segregation under applicable statutes. See G. L. c. 66, § 10( d)(iv). Therefore, the META may assess a fee for the time spent to segregate and redact these requested records.

Julie A. Ciollo, Esq. SPR18/108 Page 3 January 31, 2018 · Conclusion Accordingly, it is my determination that due to the commercial nature of the request as well as the explanation provided in the petition relating to the necessary redactions to remove personal information, the META is permitted to charge for time spent segregating and redacting the requested records. \\Then preparing a fee estimate for the provision of the requested records, the META is advised to provide a detailed explanation to the requestor indicating why this estimated amount of time is necessary. See G. L. c. 66, § lO(d)(iv) (requiring the amount of the fee must be reasonable). Please note, the Supervisor does not possess the authority to permit the META to charge for the first four hours of employee time. The META must also provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. The META shall provide a response to Ms. Richards within five business days of receipt ofthis determination. See 950 C.M.R. 32.06( 4)(h)( 4). Ms. Richards may appeal the META 's fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please be aware, the requestor 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, § 1 OA. Sincerely, ~"~ Supervisor of Records cc: Amy Richards