Gus Bickford v. Massachusetts Department of Transportation - Office of the General Counsel (SPR 20191551)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe111isor of Records August 9, 2019 SPR19/1551 William J. Doyle, Esq. Records Access Officer Massachusetts Department of Transpmiation Office of the General Counsel Ten Park Plaza, Suite 3510 Boston, MA 02116 Dear Attorney Doyle: I have received your petition on behalf of the Massachusetts Department of Transpmiation (Depmiment) requesting permission to charge for time spent segregating or redacting responsive records under G. L. 66, § lO(d)(iv). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § lO(c). On July 25, 2019, Gus Bickford requested two catgeories ofrecords "[r]elated to any individuals whose license has been suspended by the Registry of Motor Vehicles as a result ... • any all Motor Vehicle Crash Operator repmis identifying accidents that occurred after the date on which the out-of-state violation notice is dated or was believed to be received by the RMV, if any notice is not dated, and; • any all motor vehicle police crash reports filed with the RMV and identifying accidents that occurred after the date on which the out-of-state violation notice is dated or was believed to be received by the RMV, if any notice is not dated." Petition to Assess Fees 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 (Supervisor) under a petition under G. L. c. 66, § 10 (d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). 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). 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. SPRl 9/1551 Page 2 August 9, 2019 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, § lO(d)(iv). It is my determination that this request was not made 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; 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. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). 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, § lO(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 pali 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 August 5, 2019, petition the Depaliment is requesting the "the Supervisor's permission to charge the requester for time spent segregating and redacting records that are responsive to the request." The Depaliment states the request is "[f]or the relevant time period of June 22, 2019 to present" and includes: "• any and all communications whether in paper or electronic form related to or referencing a hearing of the Joint Committee on Transportation; • any and all communications including attachments, memoranda, and any other form of correspondence whether in paper or electronic form related to or referencing out-of-state

William J. Doyle, Esq. SPR19/1551 Page 3 August 9, 2019 violation notices, and; • any and all documents sufficient to identify any meetings or conference calls related to the RMV' s processing of out-of-state violation notices, including the identities of meeting attendees and any documentation used during these meetings." The Depaiiment explains "due to the substance of the request, we believe that many, if not all, of the responsive records will require redaction ofrecords ... pursuant to Massachusetts General Laws, Chapter 4, Section 7(26)(a)" and "containing personal information under Section 7(26)(c)." Further, the Depaiiment explains "[w]ith regard to records which must be exempted from disclosure by statute, the Drivers Privacy Protection Act (18 U.S. Code§ 2721) ... Personal 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." The Department indicates "[c]harging a fee in this matter is necessary because this request cannot be prudently completed without redacting informatioll' under these applicable exemptions" and "is meant to protect MassDOT from inadve1iently revealing confidential personal information." Conclusion In light of the Department's petition, I find the Depaiiment 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 Department may assess a charge for the segregation and redaction of such exempt material. Please note, Mr. Bickford 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: Gus Bickford