Vernal Coleman v. Massachusetts Bay Transportation Authority (SPR 20191277)

The Com1nonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 27, 2019 SPR19/1277 Jullie Ciollo, Esq. Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received your petition on behalf of the Massachusetts Bay Transportation Authority (Authority) requesting permission to charge for time spent segregating or redacting responsive records under G. L. c. 66, § 10 (d)(iv). As required by law, the Authority furnished a copy of their petition to the requestor. G. L. c. 66, § 1O (c). In this matter, on June 17, 2019 Mr. Vernal Coleman requested, "[ s] ettlement agreement and release of claim records, those made both in and outside of court settings, involving the Massachusetts Bay Transportation Authority Transportation Authority since .January I, 2014." Petitions to Assess Fees The Supervisor of Records (Supervisor) may approve a petition from an agency to charge for time spent segregating or redacting or to charge in excess of$25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the agency to comply with the request. G. L. c. 66, § lO(d)(iv). 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, § IO(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 or to charge in excess of $25 an hour for the provision of public 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 the request is not for a commercial purpose. 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 l) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of 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

Attorney Ciollo SPRl9/1277 Page 2 June 27, 2019 $25 per hom; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § I 0( d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 fom 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 homly 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, § 1O (d)(iv). See G. L. c. 66, § 1O (d)(ii); 950 C.M.R. 32.06(4). Current Petition In its petition to this office dated June 20, 2019 the Authority states, "[c ]onsultations with the applicable records custodian(s) is underway to determine what responsive records are in the possession, custody and control of the MBTA . No matter the scope of the MBTA 's response, however, it is likely that all responsive records will need to be redacted under either Exemption (c) or (o) to the Public Records Law." The Authority cites Exemption (c ) claiming, "[t]he 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 disclosme of which may constitute an unwarranted invasion of personal privacy." Further the Authority cites Exemption (o) claiming, "[t]he request calls for records likely to contain material that will require redaction under Exemption (o) to the Public Records Law, which protects 'the home address, personal email address and home telephone number of an employee of the judicial branch, an unelected employee of the general comt, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories."' 1 The June 20h petition posits that, "the MBTA must take care to review and redact each record in its possession before providing them to Mr. Coleman, and should be allowed to charge for this necessary work. Chargii1g a fee in this matter is necessary because Mr. Coleman's

Attorney Ciollo SPRI 9/1277 Page 3 June 27, 2019 request cannot be prudently be completed without redacting information falling under Exemptions (c ) and/or (o ). The fee is reasonable, as it relates to specific redactions. The fee is not designed to limit, deter or prevent access to public records. Rather, it is meant to protect the MBTA from revealing personal information and protects the individuals who are the subjects of the records sought. Releasing the requested records without redaction would thwart the MBTA's obligations to protect its current and former employees, who are owed a ce1iain expectation of privacy in their employment with the MBTA." Co11c/11sio11 In light of the Authority's petition, I find the Authority has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. Sec G. L. c. 66, § 1O (d)(iv). To the extent the responsive records contain the exempt information as described above, the Authority may assess a charge for the segregation and redaction of such exempt material. Further, this office encourages Mr. Coleman and the Authority to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § IO(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Any fee estimate by the Authority must be in compliance with this determination, the Public Records Law, and its Access Regulations. 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, § I 0( d)(iv)( 4), IOA(c). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Vernal Coleman