Vernal Coleman v. Massachusetts Bay Transportation Authority (SPR 20191264)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 27, 2019 SPR19/1264 Sonia Skinner, Esq. Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Sonia 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(d)(iv). On June 17, 2019 Vernal Coleman requested "maintenance records, including but not limited to repair work orders and inspection reports, for the specific car(s), ties, signal equipment and other track infrastructure involved in the June 11, 2019 Red Line derailment near the JFK/UMASSS 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 Supervis.or 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 Skinner, Esq. SPR19/1264 Page2 June 27, 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, § lO(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, § 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 In its petition dated June 20, 2019, the MBTA petitioned this office for permission "to charge the requestor for time spent segregating and redacting records responsive to the request." The MBTA claims that "many, if not all, of the responsive records will require redaction of information relating to investigatory materials pursuant to Massachusetts General Law, Chapter 4, Section 7(26)(f) and security sensitive information pursuant to Massachusetts General Laws, Chapter 4, Section 7(26)(n)." With respect to redactions under Exemption (f), the MBTA claims that "the responsive materials may contain information relating to an ongoing investigation, the release of which many undermine the progress of the investigation and/or the witnesses who testify during the investigation." With respect to Exemption (n), the MBTA further claims that the "responsive records in this matter may contain information about safety and maintenance protocols, specific information about the track and signal infrastructure, and other material that cannot be publicly shared without jeopardizing public safety. These records may also contain Sensitive Security Information or information that, if publicly released, would be detrimental to transportation

Sonia Skinner, Esq. SPR19/1264 Page 3 June 27, 2019 security, as defined by Federal Regulation 49 C.F.R. Part 1520." The MBIA asserts that "based on the above, [they] should be allowed to charge for this work." They further claim that "the fee is reasonable as it related to a specific redaction, and the fee is not designed to limit, deter or prevent access to public records. Rather, it is meant to protect the MBTA from inadvertently revealing information relating to ongoing investigations, and security-sensitive material. Releasing the requested records without redaction would impede the MBTA's investigative procedures, security initiatives and obligations under Federal law, as well as jeopardize the safety, and security of its employees and the Commonwealth's residents and visitors." The MBIA explained that they "will be asking the requestor to modify and clarify the request," but as they "cannot control the time period in which the requester responds to [them], or to the extent that they are willing to clarify/modify their request and, further, as [the MBIA is] required to make this petition to [this] office within ten business days of the request, [the MBIA] ask[s] that [this office] approve this petition at this time." Conclusion In light of the MBTA's petition, I find the MBIA has met its burden to explain how the response could not have been prudently completed without the redaction or segregation. To the extent the responsive records contain the exempt information as described above, the MBIA may assess a fee for segregation and redaction. Please note, Mr. Coleman 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: Vernal Coleman