Matthew Rocheleau v. Massachusetts Bay Transportation Authority - Office of the General Counsel (SPR 20200020)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 6, 2020 SPR20/0020 Julie A. Ciollo, Esq. Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Ciollo: 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, § lO(d)(iv). On December 30, 2019, Matthew Rocheleau of the Boston Globe requested several categories of records invoving all communications between Authority Transit Police and the Suffolk County District Attorney Office regarding the Northeastern parking garage. 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, § JO(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, § 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. SPR20/0020 Page 2 January 6, 2020 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, § 10( d)(iv). See G. L. c. 66, § 10(d )(ii); 950 C.M.R. 32.06(4). Current Petition In its petition dated January 6, 2020, the Authority requests approval to assess fees for costs associated with responding to a public records request. The Authority states that "due to the substance of the request, we believe that many, if not all, of the responsive records will require redaction of investigatory information under Section 7(26)(f), and/or security-sensitive information pursuant to Section 7(26)(n)." The Authority further states that redaction is nessesry as these "records may also contain Sensitive Security Information or informati.on that, if publicly released, would be detrimental to transportation security." G. L. c. 4, § 7(26)(n). The Authority explains with respect to redactions under Exemption (f), the records may contain information that "seeks transit police records that have been recently created [and that] there may be responsive material that cannot be shared as an investigation may be open and ongoing."

Julie A. Ciollo, Esq. SPR20/0020 Page 3 January 6, 2020 Conclusion In light of the Authority's petition, I find the Authority 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 Authority may assess a fee for segregation and redaction. This office encourages Mr. Rocheleau and the Authority to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § lO(b)(vii). Any fee estimate by the Authority must be in compliance with this determination, the Public Records Law, and its Access Regulations. Please note, Mr. Rocheleau 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. Murray Supervisor of Records cc: Matthew Rocheleau