Vernal Coleman v. Massachusetts Bay Transportation Authority (SPR 20191417)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

July 23, 2019 SPR19/1417 Julie Ciollo, Esq. Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116

Dear Attorney Ciollo:

On July 17, 2019, this office 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). On July 23, 2019, this office received an amended petition. As required by law, the Authority furnished a copy of their petition to the requestor. G. L. c. 66, § 10(c). In this matter, on July 8, 2019 Vernal Coleman requested copies of various documents.

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, § 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 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 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 SPR19/1417 Page 2 July 23, 2019

$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 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, § 10(d)(i). 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.MLR. 32.06(4).

Current Petition

In its July 23" petition the Authority writes, “[t]he MBTA is currently assessing whether and where it possesses records responsive to Mr. Coleman’s request. However, due to the substance of the request, we believe that many, if not all, of the responsive records will require redaction of security-sensitive information pursuant to Section 7(26)(n) or investigatory information pursuant to Section 7(26)(f).”

The Authority cites Exemption (n) claiming, “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.” Further, the Authority cites Exemption (f) claiming, “the request seeks records that have been recently created.” The Authority notes, “there may be responsive material that cannot be shared as an investigation may be open and ongoing, In addition, some records may be part of an ongoing and unfinished investigation, the effectiveness of which may be impaired if the responsive records were to be released.”

The July 23" petition posits that, “[c]harging a fee in this matter is necessary because Mr, Coleman’s request cannot be prudently completed without redacting information under these applicable exemptions. 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

Attorney Ciollo SPR19/1417 Page 3 July 23, 2019

from inadvertently revealing security-sensitive material. Releasing the requested records without redaction would impede the MBTA’s investigatory and 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.”

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, § 10(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, § 10(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, § 10(d)¢iv)(4), 10A(c).

Duero

telucen S. Murray Supervisor of Records

cc: Vernal Coleman