Andy Metzger v. Massachusetts Bay Transportation Authority - Office of the General Counsel (SPR 20191304)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen>isor ofR ecords July 2, 2019 SPR19/1304 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, § 10(d )(iv). On June 19, 2019, Andy Metzger of Commonwealth Magazine requested records concerning five specific words within an identified timeframe from two identified individuals. 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, § 10( 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, § lO(d)(iv). The second prong of the test is whether the fee represents an actual and good faith 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. SPR19/1304 Page 2 July 2, 2019 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. G. L. c. 66, § 10(d )(iv). Fee Estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10( d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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, § 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, § 10( d)(iv). See G. L. c. 66, § 10( d)(ii); 950 C.M.R. 32.06(4). Current Petition In its June 28, 2019, petition the MBTA requests to this office to "waive statutory limits to fees" in the case of Mr. Metzger's request. The MBTA indicates that "many of the responsive records may require redaction of information" under Exemptions ( d), (f), and (n) of the Public Records Law. It is explained that relating to Exemptions ( d) and (f), the request seeks records that have been recently created and relate to "a very recent indecent" and "there may be responsive material that cannot be shared as an investigation may be open and ongoing" and "ce11ain communications may relate to policy positions being developed by the MBTA. Concerning Exemption (n), the MBTA asserts that "responsive records in this matter may contain information about safety protocols, plans or schematics, emergency preparedness, operational details, and other material that cannot be shared publicly without jeopardizing public safety. These records may also contain Sensitive Security Information or information that, if publicly released, would be detrimental to transportation security, as defined by Federal Regulation 49 C.F.R. Part 1520." The MBTA concludes by explaining that charging a fee is necessary because "Mr. Metzger' s request cannot be prudently completed without redacting information under the

Julie A. Ciollo, Esq. SPR19/1304 Page 3 July 2, 2019 applicable exemptions. The fee is reasonable as it related 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 inadve1iently revealing both security-sensitive material, as well as material relating to ongoing policy discussions and investigations. Releasing the requested records without redaction would impede the MBTA's security initiatives and obligations under Federal law, as well as jeopardize the safety, security and privacy of its employees and the Commonwealth's residents and visitors." 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, § 10(d )(iv). Conclusion 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 shall provide a response to Mr. Metzger within five business days ofreceipt of this determination. See 950 C.M.R. 32.06(4 )(h)( 4). Mr. Metzger 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, § 10(d)(iv)(4), lOA(c). Sincerely, ~~· Rebecca S. Murray Supervisor of Records cc: Andy Metzger