Chris Weld v. Massachusetts Bay Transportation Authority (SPR 20182051)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 21, 2018 SPRlS/2051 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. Please note this request is also the subject of a petition filed with this office on December 3, 2018. See SPR18/1878 Determination of the Supervisor of Records (December 10, 2018). In my December 10th determination I found the MBTA had met its burden to explain how the responsive records required review for applicable exemptions. However, I encouraged Mr. Weld and the MBTA to continue to communicate to facilitate providing records more efficiently and affordably before opining on the MBTA's petition. G. L. c. 66, § IO(d)(vii). 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, § IO(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). 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 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 redaction or segregation; 2) the amount ofthe 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, § 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 allow its petition for permission to assess fees for the redaction of information falling under Exemptions (d) and (n)." The MBTA explains they "made certain suggestions for modifications to Mr. Weld that would allow him to be more efficiently and affordably accommodated. Mr. Weld responded on December 5t\ in which he made some modifications to his public records request." However, the MBTA indicates "even the 'narrowed' fourteen requests comprise hundreds of pages of documents." Further, the MBTA states th,at it "has identified nearly 10,000 emails that may be responsive to his requests in some way, but must be further searched, one by one, to match them

Julie A. Ciollo, Esq. SPRI8/1878 Page 3 December 10, 2018 to the subject matters identified in the requests." The MBTA asserts they intend "to communicate further with Mr. Weld about the scope of his records request. However, it is clear that even a narrowed request will still require a great deal of redaction prior to the production of responsive records." The MBTA is advised that when making redactions under Exemption (n) and ( d), any non-exempt, segregagble portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). Redactions should only be made if the MBTA can demonstrate with specificity the exemption applies. G. L. c. 66, § 1O (b )(iv); See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; Reinsteain v. Police Comm'r of Boston (the statutory exemptions are narrowly construed and are not blanket in nature). Conclusion In light of the MBTA's renewed petition, and my determination in SPRI 8/1878, I find the MBTA is permitted to charge for time spent segregating and redacting the requested records. When preparing a fee estimate for the provision of the requested records, the MBTA is advised to provide a detailed explanation to the requestor indicating why this estimated amount of time is necessary. See G. L. c. 66, § lO(d)(iv) (requiring the amount of the fee must be reasonable). Please note, the Supervisor does not possess the authority to permit the MBTA to charge for the first four hours of employee time. The MBTA must also provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. The MBTA shall provide a response to Mr. Weld within ten business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Weld may appeal the MBTA's fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please be aware, the requestor 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, § 1 OA. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Christopher Weld