John H. McElduff v. Massachusetts Bay Transportation Authority (SPR 20190251)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 13, 2019 SPR19/0251 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. G. L. c. 66, § lO(c). On January 29, 2019, John McElduff requested 17 categories of records pertaining to an MBTA project at its Riverside Station. 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, § 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, § 1O (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. SPR19/0251 Page 2 February 13, 2019 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, § 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, § 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 John McElduff for time spent redacting exempted information from records responsive to his public records request." The MBTA explains "certain parts of his request call for records likely to contain material that will require redaction under Exemption (d) to the Public Records Law. Specifically, the project at issue relates to ongoing discussions and negotiations between the MBTA and a real estate developer, and many responsive records are likely to take on a deliberative or policymaking character character." The MBTA states that the "MBTA should be allowed to charge for the necessary work of redacting material falling under Exemption (d) to the Public Records Law." The MBTA exaplains "[c]harging a fee in this matter is necessary because Mr. McElduff's request cannot be prudently be completed without redacting information falling under Exemption (d)." The MBTA claims "the fee is reasonable, as it relates to a specific redaction. The fee is not designed to limit, deter or prevent access to public records. Rather, it is meant to protect the MBTA from revealing confidential material and information that could taint an ongoing deliberative process if prematurely disclosed."

Julie A. Ciollo, Esq. SPR19/0251 Page 3 February 13, 2019 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. McElduffhas 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), IOA(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: John McElduff