Christine Willmsen v. Massachusetts Bay Transportation Authority - Office of the General Counsel (SPR 20191303)

The Con1n1on,vealth of Massachusetts Wmiam Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 1, 2019 SPR19/1303 Julie A. Ciollo, Esq. Records Access Officer 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 (MBTA) requesting permission for a waiver of statutory limits on fees that may be assessed in responding to a request. G. L. c. 66, § lO(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the MBTA furnished a copy of this petition to the requestor. G. L. c. 66, § 1O (d)(iv). On June 20, 2019, Christine Willmsen of WBUR requested records concerning "complaints, comments, and questions regarding accessibility that the Customer Support team received." Petitions regarding fees The Supervisor of Records (Supervisor) may approve a petition from a municipality 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 municipality to comply with the request. G. L. c. 66, § 10( 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, § lO(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality's petition to allow the municipality 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, § 1O (d)(iv). 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. SPRl 9/1303 Page2 July 1, 2019 The second prong of the test is whether the fee represents an actual and good faith representation by the municipality 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. G. L. C. 66, § lO(d)(iv). Fee Estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § lO(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. C. 66, § 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, § 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 June 28, 2019, petition the MBTA requests "permission to charge the requester ... for time spent redacting certain portions of records ... " related to Ms. Willmsen's request. The MBTA indicates that "it is likely that all responsive records will need to be redacted under Exemption (c) of the Public Records Law." It is explained that "given the nature of the records requested, it is expected that many of them will contain personal and/or medical information about a named individual" Further, the MBTA asse1ts that "[t]he request calls for records likely to contain 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." The MBTA concludes by explaining that charging a fee is necessary because the "request cmmot be prudently completed without redacting information falling under exemption (c). The fee is reasonable as it relates to specific redactions, and 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 individuals who are subjects of the records sought. Releasing the requested records without redaction would thwart the MBTA's obligations to protect the

Julie A. Ciollo, Esq. SPR19/1303 Page 3 July 1, 2019 privacy of the individuals who provide personal or medical information to the MBTA." I find the MBTA 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. See G. L. c. 66, § IO(d)(iv). Co11clusio11 Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition, the MBTA is permitted to charge for time spent segregating and redacting the requested records. When preparing a fee estimate for the provision of the requested records the MBTA is advised to provide a detailed explanation to the requestor detailing why this amount of time is necessary. See G. L. c. 66, § lO(d)(iv) (requiring the amount of the fee must be reasonable). The MBTA must also provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. The MBTA must provide a response to Ms. \Villmsen within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Willmsen may appeal the MBTA's fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note the requestor 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, § I0(d)(iv)(4), lOA(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Christine Willmsen