Sean Cotter v. Massachusetts Department of Transportation (SPR 20191452)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pen1/sor of Records July 26, 2019 SPR19/1452 William J. Doyle, Esq. Massachusetts Department of Transportation Office of the General Counsel 10 Park Plaza, Suite 3510 Boston, MA 02116 Dear Attorney Doyle: I have received your petition on behalf of the Massachusetts Department of Transportation (MassDOT) requesting permission to charge for time spent segregating or redacting responsive records under G. L. c. 66, § 10 ( d)(iv). As required by law, MassDOT furnished a copy of the petition to the requestor. Id. On July 10, 2019 MassDOT received a request from Sean Cotter of the Boston Herald seeking "[a]ll emails between Thomas Bowes and Erin Deveney featuring the word 'ATLAS,' or the ph[ r Jase 'out-of-state' or 'out of state,' 'notification,' [']computer,' 'system,' or 'training' from January 2018 to present." Petitions regarding 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, § 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, § lO(d)(iv). It is my determination thatthe 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

William J. Doyle, Esq. SPR19/1452 Page 2 July 26, 2019 could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10( d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § IO(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, § IO(d)(iv). See G. L. c. 66, § IO(d)(ii); 950 C.M.R. 32.06(4). Current Petition In its petition MassDOT requests "the Supervisor's permission to charge the requester for time spent segregating and redacting records that are responsive to the request." MassDOT indicates that " ... due to the substance of the request (in that the responsive emails may contain information on individual violators), we believe that many of the responsive records will require redaction ... "under Exemptions (a) and (c) of the Public Records Law. You explain that" ... the Driver's Privacy Protection Act (18 U.S. Code§ 2721) states, in part, ' [a] State department of motor vehicles, and any officer, employee, or contractor thereof, shall not knowingly disclose or otherwise make available to any person or entity ... personal information, as defined in 18 U.S.C. 2725(3), about any individual obtained by the department in connection with a motor vehicle record ... "' MassDOT fmiher explains that "[p]ersonal information includes information that identifies an individual, including an individual's photograph, social security number, driver identification number, name, address (but not the 5- digit zip code), telephone number, and medical or disability information." MassDOT also notes that "[t]he Massachusetts Public Records Law allows redaction under Exemption (c) for records likely to contain 'personnel and 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."' MassDOT concludes by explaining that charging a fee is necessary because the" ...

William J. Doyle, Esq. SPR19/1452 Page 3 July 26, 2019 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 MassDOT from inadvertently revealing confidential personal information." You further note that "[r]eleasing the requested records without redaction would impede MassDOT's obligations under Federal law, as well as jeopardize the security and privacy of the Commonwealth's residents and visitors." In light of the explanation in its petition, I find that MassDOT 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). Conc/usio11 Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition, MassDOT 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 MassDOT 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). MassDOT must also provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. MassDOT shall provide a response to Mr. Cotter within five business days ofreceipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Cotter may appeal MassDOT'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: Sean Cotter