Jim Haddadin v. Massachusetts Bay Transportation Authority - Office of the General Counsel (SPR 20192539)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 13, 2020 SPR19/2539 Julie A. Ciollo, Esq. Assistant General Counsel MBTA Law Depatiment 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: · I have received the petition of Jim Haddadin of NBC] 0 Boston appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to a request for public records. G. L. c. 66, § lOA; also 950 C.M.R. 32.08(1). Specifically, Mr. Haddadin requested the following records: • all wai-ranty claims, and/or notices of defect, submitted by the Authority to CRRC since Jan. 1, 2018; • all failure reports generated in conjunction with repairs undertaken by the contractor and/or the Authority since Jan. 1, 2018. This request was the subject of a previous appeal. SPRl 9/2510 Determination of the Supervisor of Records (December 27, 2019). In the December 27th determination I indicated, in part, that the MBTA responded to Mr. Haddadin's request with a fee estimate sent on December 23, 2019. Mr. Haddadin appealed the fee estimate and SPRJ9/2539 was opened as a result. 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 4 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 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. SPR19/2539 Page2 January 13, 2020 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). Appeal Based on a review of the file, I understand that Mr. Haddadin submitted his request on December 4, 2019. The MBTA acknowledged receipt of the request on December 4, 2019 and sent Mr. Haddadin emails on December 20th and December 23rd. In the December 23rd email you indicated" ... I am expecting some information from the records custodians shortly and will be able to provide you with a formal update by December 30th. Please let me know if extending the MBTA's response deadline under G. L. c. 66, § lO(b) until December 27th is acceptable to you. Of course, [i ]f I have information sooner than that, I will be able to respond quicker." Subsequently on December 23rd, the MBTA provided Mr. Haddadin a fee estimate of $287.50 which was comprised of the following: "Search time: 2.00 hours; Redaction (required by law) time: 15.00 hours; Reproduction time: 0.50 hours; Total estimated time: 17 .50 hours[.]" You also indicate "[i]n order to fully comply with your request, numerous pages must be compiled from various electronic sources. The records then must be reviewed for redactions. For example, responsive records will likely 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." In his appeal petition Mr. Haddadin asserts "[t]he MBTA failed to respond to my request in a manner that satisfies the public records law and its access regulations within 10 business days." He further notes "[a]fter receiving my request on Dec. 4, the MBTA's public records platform sent a formulaic acknowledgment of the matter by email. However, the agency failed to provide a substantive response that satisfies the requirements of the statute and state regulations until Dec. 23, which falls 12 business days after the request was received." G. L. c. 66, § lO(e) provides that "[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b ). " Based upon a review of the file, it is unclear whether the MBTA complied with G. L. c. 66, § 10(e ) by providing a response to this request within 10 business days under G. L. c. 66, § lO(b). Therefore, I find the MBTA must demonstrate whether it responded to the December 4th request in compliance with G. L. c. 66, § lO(e). Fmiher, it does not appear the MBTA submitted a petition to this office for permission to assess fees for the time to segregate and/or redact responsive records. In the event that the MBTA can demonstrate compliance with G. L. c. 66, § lO(e), the MBTA must also explain whether any such redactions are required by law. See G. L. c. 66, § lO(d)(ii) (a fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is

Julie A. Ciollo, Esq. SPR19/2539 Page 3 January 13, 2020 required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(d)(iv)). Conclusion Accordingly, the MBTA is ordered to provide a response to Mr. Haddadin in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. MmTay Supervisor of Records cc: Jim Haddadin