Allison Jarmanning v. Massachusetts Bay Transportation Authority (SPR 20191342)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 8, 2019 SPR19/1342 Sonia Skinner, Esq. MBTA Law Department 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Skinner : 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 its petition to the requestor. G. L. c. 66, § IO(c). In this matter, on June 27, 2019 Allison Jarmanning requested, "the time period January 1, 2018 to present: -- any records related to advertising submissions that were rejected by the MBTA, including images and/or descriptions of the ads and communication about why the ads did not meet the MBTA advertising guidelines." 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, § IO(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 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, § 10(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 1) if the fee is necessary such that the request 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 Skilmer SPR19/1342 Page 2 July 08, 2019 could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10( d). The fees must reflect the actual cost of complying with a paiiicular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. C. 66, § 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, § lO(d)(iv). See G. L. c. 66, § lO(d)(ii); 950 C.M.R. 32.06(4). Current Petition In its petition to this office dated July 2, 2019 the Authority states, "[w ]e are currently conducting a search for responsive records. However, due to the substance of the request, we believe that many, if not all, of the responsive records will require redaction of communications that are subject to the attorney-client privilege. Therefore, the MBT A seeks the Supervisor's permission to charge the requester for time spent segregating and redacting privileged records that are responsive to the request." The Authority fmiher writes, "[c ]harging a fee in this matter is necessary because Ms. Jarmaiming's request cannot be prudently completed without redacting all privileged communications. The fee is reasonable as it relates to a specific redaction, and the fee is not designed to limit, deter or prevent access to public records. Rather, it is meant to protect the MBTA from inadvertently revealing attorney-client privileged communications. Releasing the requested records without redaction would impermissibly impair the MBTA's right to rely upon the privacy of all of its communications with counsel." Conclusion 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. See G. L. c. 66, § lO(d)(iv). To the extent the responsive records

Attorney Skinner SPR19/1342 Page 3 July 08, 2019 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 Ms. Jarmanning and the Authority 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). Any fee estimate by the Authority must be in compliance with this determination, the Public Records Law, and its Access Regulations. Please note, Ms. Jarmanning has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior comi. See G. L. c. 66, § 10(d)(iv)(4), lOA(c). Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Ally Jannanning