Adam Vaccaro v. Massachusetts Bay Transportation Authority (SPR 20192528)

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

Rebecca S, Murray Supervisor of Records

December 27, 2019 SPR19/2528

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 permission to charge for time spent segregating or redacting responsive records under G. L. 66, § 10(d)(iv). As required by law, the MBTA furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On December 5, 2019, Adam Vaccaro requested "[r]ecords of minutes from meetings between the MBTA and CRRC regarding new

- Red and Orange Line cars, dating to June 1, 2019; [a]ny email correspondence from MBTA officials and anybody whose email address ends CRRCma.com officials that uses the terms ‘wear pad’ or ‘wearing pad’ since Nov. 15, 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, § 10(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, § 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

Julie A. Ciollo, Esq. SPR19/2528 Page 2 . December 27, 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)(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.MLR. 32.06(4). ,

Current Petition

In its December 23, 2019, petition, the MBTA “seeks the Supervisor’s permission to charge Mr. Vaccaro for time spent segregating and redacting records that are responsive to his request, given the likely sensitive nature of any responsive records.”

The MBTA explains “[c]ertain parts of the request call for records likely to contain safety and security-sensitive information that will require redaction under Exemption (n) to the Public Records Law...[s]pecifically, responsive material may contain information about safety protocols, plans or schematics, and other material that cannot be shared publicly without jeopardizing public safety.”

Further, the MBTA states “[r]esponsive 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.” The MBTA claims “[r]eleasing the requested records without redaction would thwart the MBTA’s security initiatives and its

Julie A. Ciollo, Esq. SPR19/2528 Page 3 December 27, 2019

obligations under Federal law, as well as jeopardize the safety, security and privacy of its employees and patrons.”

Conclusion

In light of the MBTA's petition, I find the MBTA has met its burden to explain how the request cannot not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the MBTA may assess a charge for the segregation and redaction of such exempt material.

Please note, Mr. Vaccaro 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).

Sincerely,

Rbecca Muar

Rebecca S. Murray Supervisor of Records

cc: Adam Vaccaro