Andrea Estes v. Massachusetts Bay Transportation Authority (SPR 20181382)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 1, 2018 SPRlS/1382 Julie A. Ciollo, Esq. Assistant General Counsel MBTA Law Department 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received a petition from Andrea Estes appealing the response from the Massachusetts Bay Transportation Authority (MBTA) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Ms. Estes made a public records request on May 14, 2018 to the MBTA requesting documents pertaining to emails between identified parties from January 2016 to December 31, 2017. The MBTA provided Ms. Estes with a response on May 21, 2018 explaining the search resulted in the production of 2,257 emails. The MBTA requested that Ms. Estes provide a modification of the scope of the request in order to facilitate a more efficient response. After several attempts to modify the scope, Ms. Estes appealed to this office on September 17, 2018 requesting that the MBTA produce the records. Public Records Law Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten business days ofreceipt of the request. G. L. c. 66, § 1 O(a)-(b ). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § 1O (b ). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii), (b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § lO(b)(iii). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § lO(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends 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. SPR18/1382 Page2 October 1, 2018 to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) ( custodian has the burden of establishing the applicability of an exemption). Fee Estimates If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2)(b) (a records access officer (RAO) shall provide written, itemized, good faith estimate). Once fees are paid, an RAO must provide the responsive records. 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 $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d )(iv). See G. L. c. 66, § 10(d )(ii); 950 C.M.R. 32.06(4). Appeal The MBTA stated in an email to Ms. Estes on August 8, 2018 "[a] preliminary calculation is that it will take a minimum of 40 hours to process each email and attachment for production. Unfortunately this is not tenable given the resources the MBTA is able to devote to this request, as I expressed to you last week. In addition, we take the position that this could be narrowed further." It is not clear what documents will be produced to Ms. Estes. The MBTA must provide a clear fee estimate on how many pages will be produced, the reasons for redaction of documents, if any, and any other associated fees. See G. L. c. 66, § lO(d)(i) (a maximum fee of five cents ($.05) per page may be assessed for black and white copies for both single and double-sided copies of a public record). These documents may be produced to Ms. Estes on a rolling basis. See G. L. c. 66, § lO(a). While agencies may include 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, the fee shall not be more than $25 per hour. See G. L. c. 66, § lO(d)(iii), (iv). Further, an agency may not charge for the time to segregate or

Julie A. Ciollo, Esq. SPR18/1382 Page 3 October 1, 2018 redact records unless the 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)(iii); 950 C.M.R. 32.06(4). The MBTA has not provided a clear and itemized fee estimate to Ms. Estes in response to this request. Conclusion Accordingly, the MBTA is ordered to review the requests made by Ms. Estes and provide a response in accordance with the Public Records Law, its Access Regulations and this order within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Andrea Estes