Brian Jungwirth v. Massachusetts Bay Transportation Authority - Office of the General Counsel (SPR 20181884)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 10, 2018 SPR18/1884 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). Brian Jungwirth requested various 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, § 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, § 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. SPR18/1884 Page 2 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, § lO(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 Brian Jungwirth for time spent redacting personal and medical information from records responsive to his public records request." The MBTA explains that the documents sought by Mr. Jungwirth "concern the operations of the MBTA's paratransit service, the Ride. Certain categories ofrequests, notably the previous 12 months of invoices and previous 12 months of complaints, will contain personal as well as medical information concerning Ride customers. This information may include medical conditions, names, addresses and phone numbers of individuals who have qualified for and use the Ride." The MBTA states that it anticipates withholding information under Exemption (c ) due to the records relating to "personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy." See G. L. c. 4, § 7 (26)(c). The MBTA views that "[t]here is no public interest served by exposing this information" 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

Julie A. Ciollo, Esq. SPR18/1884 Page 3 December 10, 2018 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 In light of the MBTA's petition, I find the MBTA has met its burden to explain how responsive records may require review for applicable exemptions. To the extent the responsive records contain the exempt information as described above, the MBTA may assess a charge for the segregation and redaction of such exempt material. Please note, Mr. Jungwirth has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d)(iv)(4), lOA(c). Sincerely, ~a~ Supervisor of Records cc: Brian Jungwirth