John H. McElduff v. Massachusetts Bay Transportation Authority - Office of the General Counsel (SPR 20190461)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 6, 2019 SPR19/0461 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, § IO(c). On February 14, 2019, John McElduff submitted a modified request to the MBTA requesting various records regarding 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, § 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). 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, § IO(d)(iv). It is my determination that this request was not made for a commercial purpose. 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. SPR19/0461 Page 2 March 6, 2019 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 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, § lO(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 attorney-client privileged material from records responsive to his public records request." The MBTA explains "on February 14, 2019, Mr. McElduffprovided the MBTA with a request that was modified in some respects, and expanded in others ... The request includes ... two requests for email correspondence between the MBTA and various outside entities. Newly added to these email searches are four (4) separate law firms, some of who have represented the MBTA in various matters. In addition, Mr. McElduff included several generic keywords as part of his search requests (Lease, Ramp, Exit, Garage, Parking, 128, "I-95", I95, 'Interstate 95', Traffic, Vehicles, 'Rent', Default)." The MBTA states that "[g]iven the request for correspondence with outside law firms and the inclusion of generic key words, it is likely that responsive emails will include attorney-client privileged material." The MBTA cites Suffolk Construction v. DCAM, 449 Mass. 444 (2007) and writes "the Court stated, 'confidential communications between public officers and employees and governmental entities and their legal counsel undertaken for the purpose of

Julie A. Ciollo, Esq. SPR19/0461 Page 3 March 6, 2019 obtaining legal advice or assistance are protected under the normal rules of the attorney-client privilege.' Id. at 450." The MBTA explains "[i]n order to fulfil Mr. McElduff s request as-is, the MBTA would need to redact privileged material from email correspondence with outside firms that provided legal services to the MBTA." The MBTA also claims "[t]he fee is not designed to limit, deter or prevent access to public records ... it is meant to protect the MBTA from revealing confidential legal strategy about legal matters. Releasing the requested records without redaction would thwart the MBTA's position in numerous legal matters and "severely inhibit the ability of government officials to obtain quality legal advice essential to the faithful discharge of their duties, place public entities at an unfair advantage vis-s-vis private parties with whom they transact business and for whom the attorney-client privilege is all but inviolable, and impede the public's strong interest in the fair and effective administration of justice." See, Suffolk, 449 Mass. at 446." 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 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 attorney-client privilege. 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. McElduff 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, ~~ Rebecca S. Murray Supervisor of Records cc: John McElduff