Mark W. Miller v. Massachusetts Bay Transportation Authority (SPR 20190723)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 10, 2019 SPR19/723 Sonia L. Skinner, Esq. Attorney MBTA Legal Department 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Skinner: 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, § lO(d)(iv). As required by law, the MBTA furnished a copy of this petition to the requestor. G. L. c. 66, § lO(c). On March 20, 2019, Attorney Mark Miller made a request "seeking numerous categories of records relating to a May 2017 incident involving [A ttorney Miller's] client who at the time of the incident was a passenger on an MBTA bus." 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, § lO(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, § 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

Sonia L. Skinner, Esq. SPR19/0723 Page 2 April 10, 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, § 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 "permission to charge requester Mark Miller for time spent redacting personal and private medical information, and/or security and safety-sensitive information from the records that are responsive to his public records request." The MBTA, citing Exemption (c), explains "[v]arious items in the request seek records that are likely to contain personnel and confidential medical information, some responsive items are also likely to contain materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy." The MBTA, citing Exemption (n), explains that the "responsive material may contain information about safety protocols, plans or schematics, and other material that cannot be shared publicly without jeopardizing public safety." The MBTA states that they "must analyze numerous types of information from the responsive records before providing them to Attorney Miller, and should be allowed to charge

Sonia L. Skinner, Esq. SPR19/0723 Page 3 April 10, 2019 for this necessary work. Charging a fee in this matter is necessary because Attorney Miller's request cannot be prudently completed without redacting information falling under Exemptions (c), and/or (n). The fee is reasonable, as it relates to specific redactions." The MBTA claims the "fee is not designed to limit, deter or prevent access to public records. Rather, it is intended to protect the MBTA from revealing personal information, confidential medical information, and confidential safety and security-sensitive material." Further, the MBTA states "[r]elease of the requested records without redaction would thwart the MBTA's initiatives and its obligations under Federal law, as well as jeopardize the safety and security of its employees and patrons .. " Conclusion In light of the MBTA's petition, I find the MBTA has met its burden to explain how responsive recordsmay 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, Attorney Miller 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: Mark Miller Julie A. Ciollo, Esq.