Colman Herman v. Massachusetts Bay Transportation Authority - Office of the General Counsel (SPR 20180944)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 3,2018 SPRl81944 Julie A. Ciollo, Esq. Assistant General Counsel MBTA Law Department 10 Park Plaza, Suite 7760 Boston, MA 02 11 6 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 Colman Herman. G. L. c. 66, 5 lO(d)(iv). As required by law, the MBTA provided a copy of this petition to the requestor. G. L. c. 66, 5 1O (d)(iv)(2). Mr. Herman requested "hard copies and electronic copies of all the invoices submitted by outside law firms to the Massachusetts Bay Transportation Authority for the period May 1,2017 to April 30, 2018." Petitions for ability to assess fees 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, 5 10(d). The fees must reflect Id. the actual cost of complying with a particular request. 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, 5 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, 5 1O (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 Id. more than $25 per hour. 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 One Ashburton Place, Room 1719 , Boston, Massachusetts 02 108 * (6 17) 727-2832. Fax: (61 7) 727-59 14 sec.state.ma.us/pre pre@sec.state.ma.us

Julie A. Ciollo, Esq. Page 2 July 3,2018 (Supervisor) under a petition under G. L. c. 66, tj lO(d)(iv). See G. L. c. 66, tj lO(d)(ii); 950 C.M.R. 32.06(4). The Supervisor may approve a petition from an agency to charge for time spent segregating or redacting 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, tj 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, tj lO(d)(iv). Current Petition In its June 26,201 8 petition, the MBTA "seeks the Supervisor's permission to charge for time spent redacting the records requested by Mr. Herman, given the sensitive nature of the communications contained within them." The MBTA explains "[clharging a fee in this matter is necessary as Mr. Herman's request cannot be prudently be completed without a redaction fee." You indicate the MBTA would "need to redact privileged material from each of the 900 records identified above. As the invoices relate to ongoing legal matters, this request cannot be prudently completed without making these redactions." Subsequent to the filing of this petition, Mr. Herman submitted a modified request to the MBTA on June 26,201 8. It is my understanding that this petition is no longer necessary at this time in light of the amended request. Accordingly, I will not opine on the MBTA's petition. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman