Kevin Rothstein v. Department of Public Utilities - Legal Division (SPR 20191319)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 10, 2019 SPR19/1319 Carline L. Lemoine Paralegal Specialist Depaiiment of Public Utilities, Legal Division One South Station, 5th Floor Boston, MA 02110 Dear Ms. Lemoine: I have received your petition on behalf of the Department of Public Utilities (DPU) requesting permission for a waiver of statutory limits on fees that may be assessed in responding to a request as well as an extension of time to produce records. G. L. c. 66, § lO(c), lO(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the DPU furnished a copy of this petition to the requestor. G. L. c. 66, § § lO(c), lO(d)(iv). On June 14, 2019, Kevin Rothstein of WCVB-TV requested eleven categories of records related to transit safety. Mr. Rothstein then amended his request on June 28, 2019 in an effmi to narrow the scope of responsive documents. 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, § 1O (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, § 10( 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

Carline Lemoine SPR19/1319 Page 2 July 10, 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. G. L. C. 66, § 10( d)(iv). Fee Estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d ). The fees must reflect the actual cost of complying with a paiiicular request. Id. A maximum fee of five cents ($.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). The DPU's fee petition In its July 1, 2019 petition the DPU indicates that portions of the responsive records are exempt pursuant to Exemptions (c), (d), and (n) of the Public Records Law. The DPU explains that charging a fee is necessary because "there are approximately 25,000 pages of information which the DPU must review and redact, this will impose an onerous burden on DPU, which will have to devote limited resources to review and redact these records." With respect to the applicability of exemptions, the DPU explains "[t]he responsive records contain personal contact information and critical infrastructure information (home address, telephone numbers, personnel information, safety program plan and system security plan), which are specifically exempt from disclosure pursuant to G.L. c. 4, §7, cl. 26 (c), (d), and (n) respectively. Accordingly, the information must be segregated and redacted before the records are produced to the requester." For example, with respect to Exemption (n) you indicate "[t]he investigative reports, which include numerous attachments relating to the operation of the MBTA, safety program plan and system security plan will contain a significant amount of critical infrastructure information. Accordingly, segregation and redaction is required by law." Based on its petition, I find the DPU has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or

Carline Lemoine SPR19/1319 Page 3 July 10, 2019 segregation. See G. L. c. 66, § lO(d)(iv). Therefore, I find the DPU has established how it may assess a fee for the time spent segregating and/or redacting the requested records. The DPU's time petition Under the Public Records Law, upon a showing of good cause, the Supervisor may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § lO(c). The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). The DPU asserts that "it will require an extensive amount of time to complete this request" and as such is requesting an extension of 20 business days to provide a response. In a response to Mr. Rothstein the DPU explains "[w]e currently expect to produce responsive records by July 30, 2019." Based on its petition, I find that in light of volume of responsive records and the actions required of the DPU, the DPU has established good cause to permit an extension of time. I grant the DPU an extension of time to provide responsive records. To the extent possible, the DPU must provide responsive records on a rolling basis. Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition, the DPU is permitted to charge for time spent segregating and redacting the requested records. Further, for the reasons discussed above, the DPU is granted an extension oftime to produce records no later than July 30th in the manner described above.

Carline Lemoine SPR19/1319 Page 4 July 10, 2019 This office encourages Mr. Rothstein and the DPU to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § lO(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). When preparing any revised fee estimate for the provision of the requested records the DPU 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). Mr. Rothstein may appeal the DPU's response 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: Kevin Rothstein