Andrea Estes v. Massachusetts Bay Transportation Authority (SPR 20181508)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 22, 2018 SPRlS/1508 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 permission to charge for time spent segregating or redacting responsive records under G. L. 66, § 10 (d)(iv). As required by law, the MBTA furnished a copy of this petition to the requestor on October 15, 2018. G. L. c. 66, § lO(c). Andrea Estes of the Boston Globe requested various email correspondence records regarding the MBTA. Petition to Assess Fees 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 (Supervisor) under a petition under G. L. c. 66, § 10 ( d)(iv). See G. L. c. 66, § 10(d )(iii); 950 C.M.R. 32.06(4). 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, § lO(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. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d )(iv). It is my determination that this request was not made 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. SPR18/1508 Page 2 October 22, 2018 fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 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. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). 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, § 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, § 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 C.M.R. 32.06(4). Current Petition The MBTA is requesting "the Supervisor's permission to provide a cost estimate for time spent redacting the records requested by Ms. Estes on August 1st, given the sensitive nature of the communications contained within them. It is estimated that the responsive communications number 3,000 pages, not including the page count of any attachments." The MBTA explains that the emails sought by Ms. Estes contain communication between individuals that involved "high level railroad safety matters." The communications also include "responsive emails and attachments [that] contain safety and security-sensitive information that is unsuitable for public view." The MBTA states that it anticipates withholding information under Exemption (n) due to the records relating to "internal layout and structural elements, security measures, emergency preparedness ... or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation or other infrastructure located within the commonwealth." See G. L. c. 4, § 7 (26)(n). The MBTA views disclosure of the emails Ms. Estes is requesting to be "detrimental to transportation security." The MBTA also explains that "[t]he responsive emails will likely also contain Sensitive Security Information or information

Julie A. Ciollo, Esq. SPR18/1508 Page 3 October 22, 2018 that, if publicly released, would be detrimental to transportation security, as defined by Federal Regulation 49 C.F.R. Part 1520." 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)(iii); 950 CMR 32.06(4). Petitions relating to fees must be submitted to the Supervisor within 10 business days after receipt of a request for public records. 950 C.M.R. 32.06(4 )(g). Conclusion The MBTA submitted its petition on October 15, 2018, more than 10 business days after receipt of the request. In light of the fact the MBTA has not demonstrated it submitted a timely petition, the MBTA's petition to assess fees for time spent segregating and/or redacting responsive records cannot be granted. See 950 C.M.R. 32.06(4)(g). The MBTA must provide Ms. Estes with a reasonable and good faith fee estimate reflecting the cost of complying with a public records request. See G. L. c. 66, § 10(d ). Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrea Estes