Vernal Coleman v. Massachusetts Bay Transportation Authority (SPR 20191265)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 27, 2019 SPR19/1265 Julie Ciollo, Esq. Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Julie 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, § lO(d)(iv) and 950 CMR 32.06(4)(g) and (h). As required by law, the MBTA furnished a copy of this petition to the requestor. G. L. c. 66, § lO(d)(iv). On June 10, 2019 Vernal Coleman requested "any/all grievances and unfair labor practice charges/complains, including but not limited to cases that went to arbitration, filed by the MBTA Police and/or any union(s) that represent(s) that agency's employees since Jan. 1, 2015; and any/all formal filings made in those grievance cases." 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, § 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 Page 2 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, § 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, § 10(d )(iv). See G. L. c. 66, § 10(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 requestor Vernal Coleman for time spent redacting certain portions of records responsive to his public records request." The MBTA claims that "it is likely that all responsive records will need to be redacted under either Exemption (c) or (o) of the Public Records Law." With respect to redactions under Exemption ( c ), the MBTA claims that "the request calls for records likely to contain personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy." With respect to Exemption (o) the MBTA further claims "the request calls for records likely to contain material that will require redaction" to protect "'the home address, personal email address and home telephone number of an employee of. .. an agency."' The MBTA asserts that "given the above, [it] must take care to review and redact each record in its possession before providing them to Mr. Coleman, and should be allowed to charge

Sonia Skinner, Esq. SPR19/1264 Page 3 June 27, 2019 for this necessary work. Charging a fee is necessary [because] Mr. Coleman's request cannot be prudently ... completed without redacting information falling under Exemptions (c) and/or (o)." The MBTA claims the fee is reasonable, as it relates to specific redactions and "is not [d esigned] to limit, deter, or prevent access to public records. Rather, it is mean to protect the MBTA from revealing personal information and protects the individuals who are the subjects of the records sought. [Releasing] the records without redaction would thwart the MBTA's obligations to protect its current and former employees." Conclusion In light of the MBTA's petition, I find the MBTA 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 MBTA 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