Staci Rubin v. MBTA Law Department (SPR 20192183)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

October 25, 2019 SPR19/2183

Attorney Sonia L. Skinner MBTA Law Department 10 Park Plaza, Suite 7760 Boston, MA 02116

Dear Attorney Skinner:

I have received your petition on behalf of the Massachusetts Bay Transportation Authority (Authority) requesting permission to charge for time spent segregating or redacting responsive records under G., L. 66, § 10(d)(iv). As required by law, the Authority furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On October 16, 2019 the Authority received a request for records from Alternatives for Community & Environment, Inc., Community Labor United, and GreenRoots, Inc., Lawyers for Civil Rights and the Conservation Law Foundation seeking fourteen categories of records involving Authority fares, user demographics and the Automatic Fare Collection (AFC) 2.0 proposal.

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, § 10(d) (aii); 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, § 10(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, 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.

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

Attorney Sonia L, Skinner SPR19/2183 Page 2 October 25, 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, § 10(d)(@).

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)(i). 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 petition dated October 24", the Authority asserts that “many, if not all, of the responsive records will require redaction of personal information pursuant to Massachusetts General Laws, Chapter 4, Section 7(26)(c).” Additionally, the Authority further indicates that “responsive records in this matter may contain names, address information, and/or criminal record information of specifically named individuals, the disclosure of which may constitute unwarranted invasions of privacy.”

Conclusion

In light of the MBTA's petition, I find the MBTA has met its burden to explain how the response could not be prudently completed without the redaction or segregation. To the extent the responsive records contain the exempt information as described above, the MBTA may assess a fee for segregation and redaction. Any fee estimate by the MBTA must be in compliance with this determination, the Public Records Law, and its Access Regulations.

Attorney Sonia L. Skinner SPR19/2183 Page 3 October 25, 2019

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), 10A(c).

Ls lerea.

Rebecca S. Murray Kleeca Mumons

Supervisor of Records

ce: S. Rubin