John H. McElduff v. Massachusetts Bay Transportation Authority (SPR 20190573)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 26, 2019 SPR19/0573 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 ofrecords pertaining to an MBTA project at its Riverside Station. On March 5, 2019, Mr. McElduff modified the scope of his request to email correspondence. 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, § lO(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. SPR19/0573 Page 2 March 26, 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, § IO(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, § lO(d)(iv). See G. L. c. 66, § lO(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 safety and security-sensitive material from records responsive to his public records request." The MBTA explains "[w]hile the MBTA continues to communicate with Mr. McElduff about the scope of his request and awaits further revision, a preliminary review of emails has revealed that several communications contain security and safety-sensitive material, such as plans, drawings and schematics of MBTA properties and discussions about same." The MBTA states "[t]his information is protected under Exemption (n) to the Public Records Law, which protects records that 'relate to internal layout and structural elements, security measures, emergency preparedness ... or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (b) of section 10 of chapter 66, is likely to jeopardize public safety."' The MBTA claims "[t]he responsive emails may also contain Sensitive Security Information or information that, if

Julie A. Ciollo, Esq. SPR19/0573 Page 3 March 26, 2019 publicly released, would be detrimental to transportation security, as defined by Federal Regulation 49 C.F.R. Part 1520." Further, the MBTA states "[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 (n)." 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), lOA(c). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: John McElduff