Mary Markos v. Massachusetts Department of Transportation (SPR 20191569)

~· The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division · Rebecca S. Murray S11pe111isor of Records August 12, 2019 SPR19/1569 William J. Doyle, Esq. Records Access Officer Massachusetts Department of Transportation 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 Depmiment of Transportation (Depmiment) requesting permission to charge for time spent segregating or redacting responsive records under G. L. 66, § 10( d)(iv). As required by law, the Depmiment furnished a copy of this petition to the requestor. G. L. c. 66, § lO(c). On August 2, 2019, Mary Markos requested "from the period of Sept. 2016 to the present, any emails, letters, memoranda and other communications/documents from, to, or otherwise received by Thomas Bonarrigo, dudng his time working in the Merit Rating Board, regarding both in and out-of-state notifications about both CDL and Class D license violations or suspensions, regarding any backlog or unprocessed group of notifications whether written or electronic, anything having to do with staffing levels, ability or use of either ALARS or ATLAS computer systems, anything regarding the transfer or the responsibility to process out-of-state notifications from the DCU to the MRB, and regarding his retirement on July 12, 2019." 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. SPR19/1569 Page 2 August 12, 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, § 10( 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 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)(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 August 6, 2019, petition the Department is requesting "the Supervisor's permission to charge the requester for time spent segregating and redacting records that are responsive to the request." The Department 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)", "containing personnel rules and practices to the extent that proper performance of necessary governmental functions requires withholding pursuant to Section 7(26)(b)", "containing personal information under Section 7(26)(c)," and "containing security-sensitive information pursuant to Section 7(26)(n)."

William J. Doyle, Esq. SPR19/1569 Page 3 August 12, 2019 Further, the Department 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 "responsive records in this matter relative to the ALARS and ATLAS systems may contain information about safety protocols, plans or schematics, 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." Conclusion In light of the Department's petition, I find the Department 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 contain the exempt information as described above, the Depaiiment may assess a charge for the segregation and redaction of such exempt material. Please note, Ms. Markos 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, ~u~ Supervisor of Records cc: Mary Markos