Brian Keaney v. Massachusetts Department of Transportation (SPR 20191796)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 10, 2019 SPR19/1796 Julie A. Ciollo, Esq. Assistant General Counsel MBTA Law Department 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received your petition on behalf of the Massachusetts Bay Transportation Authority (MBTA ) requesting pennission to charge for time spent segregating or redacting responsive records under G. L. 66, § lO(d)(iv). As required by law, the MBTA fumished a copy of this petition to the requestor. G. L. c. 66, § lO(c). On August 28, 2019 Brian Keaney made a request for the following records: "[t]he Prime AE Group came to Dedham in March to look at the East Street bridge that carries the Franklin Line past the Endicott station ... please send me a copy of their final report and recommendation." 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). The statute sets out a two-prong test for detennining 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. 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

Julie A. Ciollo, Esq. SPR19/l 796 Page2 September 10, 2019 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, § 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, § 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 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 September 4, 2019, petition, the MBTA is seeking "to waive statutory limits to fees . pursuant to 950 32.06(4)(g)." The MBTA indicates it has "identified a responsive report and has determined that the report contains security-sensitive information pursuant to Section 7(26)(n)." The MBTA explains "responsive records in this matter may contain infonnation about structural elements and vulnerabilities, plans or schematics, stability considerations, operational details, and other materials that cannot be shared publicly without jeopardizing public safety. These records may also contain Sensitive Security Information or information, if publicly released, would be detrimental to transportation security as defined by Federal Regulation 49 C. F. R. Part 1520." Further, the MBT A states "the fee is not designed to limit, deter or prevent access to public records. Rather it is meant to protect the MBTA from inadvertently revealing security sensitive material." The MBTA explains "[r]eleasing the requested records without redaction would impede the MBTA's security initiatives and obligations under Federal Law, as well as

Julie A. Ciollo, Esq. SPR19/1796 Page 3 September 10, 2019 jeopardize the safety and security of its employees and the Commonwealth's residents and visitors." Conclusion In light of the MBTA's petition, I find the MBTA has met its burden to explain how the request cannot not be prndently completed without redaction or segregation. To the extent the responsive records contain the exempt infomrntion as described above, the MBTA may assess a charge for the segregation and redaction of such exempt material. When preparing a fee estimate for the provision of the requested records, the MBTA is advised to provide a detailed explanation to the requestor indicating why this estimated amount of time is necessary. See G. L. c. 66, § IO(d)(iv) (requiring the amount of the fee must be reasonable). Please note, the Supervisor does not possess the authority to permit the MBTA to charge for the first four hours of employee time. The MBTA must also provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. Mr. Keaney may appeal the MBTA's fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Mr. Keaney 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. MutTay Supervisor of Records cc: Brian Keaney