Chris Weld v. Massachusetts Bay Transportation Authority (SPR 20181878)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 10, 2018 SPRlS/1878 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 December 3, 2018. G. L. c. 66, § lO(c). Christopher Weld 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, § lO(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, § 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. 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 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. SPR18/1878 Page2 December 10, 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, § 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). Current Petition The MBTA is requesting "permission to charge requester Christopher Weld for time spent redacting safety and security-sensitive material, as well as information falling within the deliberative process exemption, from records responsive to his public records request." The MBTA explains that the documents sought by Mr. Weld "concern an ongoing bridge rehabilitation project. As such, many responsive records corresponding to the 14 categories of records sought by Mr. Weld, may contain security and safety-sensitive information that is not suitable for public view." The documents also include information that "may take on a deliberative or policymaking character and relate to an ongoing deliberative process." 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 MBIA views disclosing the information to Mr. Weld would "jeopardize public safety."

Julie A. Ciollo, Esq. SPR18/1878 Page 3 December 10, 2018 The MBTA also states that it anticipates withholding information under Exemption (d) because it will protect "inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency." See G. L. c. 4, § 7 (26)(d). As mentioned above, the MBTA concluded that the request may take on a "deliberative or policymaking character" relating to an "ongoing deliberative process." 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, § IO(d)(iv). See G. L. c. 66, § IO(d)(iii); 950 CMR 32.06(4). Petitions relating to fees must be submitted to the Supervisor within IO business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Conclusion In light of the MBTA's petition, I find the MBTA has met it burden to explain how responsive records may require review for applicable exemptions. However, prior to opining on whether to grant the MBTA's petition to assess the fee described above, this office encourages Mr. Weld and the MBTA to continue to communicate to facilitate providing records more efficiently and affordably. G. L. c. 66, § I 0(d )(vii). If despite this attempt at facilitating production of records the MBTA continues to seek a petition to assess fees, it may submit such a petition within 10 business days of the date of this determination. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Christopher Weld