Howard Lenow v. Massachusetts Bay Transportation Authority (SPR 20182012)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 18, 2018 SPRlS/2012 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). On November 19, 2018, Howard Lenow requested three categories of records regarding employee information. 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, § 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, § 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 fee is necessary such that the request could not have been prudently completed without 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 .. SPR18/2012 Page 2 December 18, 2018 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 Howard Lenow for time spent redacting personnel files and information, or data relating to a specifically named individual, from records responsive to his public records request." The MBTA states the records "contain personal information relating to independent contractors hired by the MB TA." Further, " [t ]here is no public interest served by exposing this information." The MBTA explains "[t]o the extent that the personal information contained in the responsive records is not protected by statute, it would be protected under Exemption ( c) to the Public Records Law, which protects records that '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."' The MBTA further explains "the MBTA must redact any personal identifying information and medical information from responsive records before providing them to Mr. Lenow." 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

Julie A. Ciollo, Esq. . SPR18/2012 Page 3 December 18, 2018 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). Please note when submitting a copy should be furnished to the requestor as required by law. G. L. c. 66, § 10(c ). Conclusion The MBTA submitted its petition on December 11, 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 Mr. Lenow 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: Howard Lenow