Christina Hager v. Massachusetts Department of Transportation (SPR 20191570)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 13, 2019 SPR19/1570 · William J. Doyle, Esq. Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Doyle: I have received your petition on behalf of the Massachusetts Department of Transpmiation (Department) requesting permission for a waiver of statutory limits on fees that may be assessed in responding to a request. G. L. c. 66, § 10(d )(iv); see also 950 C.M.R. 32.06(4). As required by law, the Depaiiment furnished a copy of this petition to the requestor. G. L. c. 66, § lO(d)(iv). On July 30, 2019, Christina Hager of CBS Boston requested emails from two identified individuals within a specified timeframe relating to "license suspension." 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, § 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 Ashbmion 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. SPR19/1570 Page 2 August 13, 2019 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for pubHc inspection. G. L. c. 66, § 10( d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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)(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, § 10( d)(iv). See G. L. c. 66, § 10(d )(ii); 950 C.M.R. 32.06(4). Current Petition In its August 6, 2019 petition, the Department requests "the Supervisor's permission to charge the requester for time spent segregating and redacting records that are responsive to the request." The Department indicates that "due to the substance of the request, we believe that many, if not all, of the responsive records will require redaction ofrecords" under Exemptions (a) and (c) of the Public Records Law. The Department explains that "the Drivers Privacy Protection Act (18 U.S. Code§ 2721) ... includes information that identified 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 further explains redaction would be necessary for "records likely to contain 'personnel and medical files or information."' The Department indicates "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. Releasing the requested records without redaction would impede MassDOT's obligations under Federal law, as well as jeopardize the safety, security and privacy of the Commonwealth's residents and visitors."

William J. Doyle, Esq. SPR19/1570 Page 3 August 13, 2019 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 Depatiment may assess a charge for the segregation and redaction of such exempt material. Please note the requester 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: Christina Hager