Joseph Dwinell v. Massachusetts Bay Transportation Authority - Office of the General Counsel (SPR 20181684)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 27, 2018 SPR18/1684 Julie Ciollo, Esq. Office of the General Counsel Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Ms. Ciollo: I have received the petition of Joe Dwinell of the Boston Herald appealing the response of 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). Specifically, Mr. Dwinell requested" ... any and all records that pertain to noise complaints on the MBTA trolleys and trains over the past 5 years." The MBTA provided a response on October 30, 2018, which included certain responsive records. The MBTA also provided a fee estimate for other portions of the responsive records. Objecting to the fee, Mr. Dwinell petitioned this office and this appeal, SPRl 8/1684, was opened as a result. 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, § 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 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). 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. SPR18/1684 Page 2 November 27, 2018 The MBTA's October 30th response In its October 30, 2018 response, the MBTA states "there are approximately 350 records of complaints or concerns having to do with noise during the time period specified." The MBTA explains that in order to fully process Mr. Dwinell' s request, "all records will have to be extracted from a database. Then, a search will have to be undertaken to determine which records match the subject matter criteria of [Mr. Dwinell's] request. In addition, records will have to be scrubbed of any personal identifying information prior to release." As such, the MBTA states that the estimated time to complete the response is 10 hours minus the first 4 hours at a cost of $25.00 per hour. Thus, 6 x $25.00 = $150.00. Fees to search for, compile, segregate, redact or reproduce a record request The Regulations provide that in cases where necessary to reproduce the requested records a records access officer may charge a fee to search for, compile, segregate, redact or reproduce a record requested based on the hourly rate of the lowest paid employee who is capable of performing the task. G. L. c. 66, § lO(d); see also 950 C.M.R. 32.07(2). Additionally, the reasonable fee for reproduction shall not exceed the actual cost of reproducing the record. Id. An agency may not charge for segregation and redaction unless required by law or a petition has been filed and approved by the Supervisor of Records. G. L. c. 66, § 10(d ); see also 950 C.M.R. 32.06(4). The MBTA states that it requires a total of ten (10) hours to extract records from a database, search records to determine responsiveness and redact personal identifying information from the records. Although the MBTA acknowledges that it shall not assess a fee for the first four hours, it is unclear why the MBTA requires a total of 10 hours to search, segregate, and redact records for responsiveness. Particularly, based on the MBTA's response, it is uncertain how many hours are allocated to search, segregate, and redact the records. The MBTA must clarify this matter. Further, the MBTA is also advised that under the updated Public Records Law, a fee may 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 ). I am not aware that the MBTA has submitted a petition under G. L. c. 66, § 10(d )(iv) with respect to these records. Accordingly, whereas the MBTA has not established that the redactions are required by law, the MBTA may not charge for redaction of the records. Lowest paid employee In its October 30th estimate, the MBTA states that" ... every hour beyond [the first four hours] requires a payment of $25.00 per hour." However, based on the MBTA's response, it is unclear if the MBTA is using the hourly rate of the lowest paid employee capable of performing the task. Accordingly, the MBTA must clarify if the lowest paid employee rate has

Julie Ciollo, Esq. SPR18/1684 Page 3 November 27, 2018 been assigned to the searching of these records. See G. L. c. 66, § 10(d )(ii). Waiver off ees In his petition for appeal, Mr. Dwinell states "I feel since this information will be used to inform the public, there should be no cost." Mr. Dwinell is advised that the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request. Under the Public Records Law, the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. See G. L. c. 66, § lO(d)(v); see also 950 C.M.R. 32.07(2)(k) (emphasis added). For the reasons discussed above, I find the MBTA must revise its fee estimate or provide further explanation of how the fee assessed in its October 30th estimate is expressly provided for and consistent with G. L. c. 66, § 10( d). Conclusion Accordingly, the MBTA is ordered to provide Mr. Dwinell with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations 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, ~r~ Supervisor of Records cc: Joe Dwinell