Shira Schoenberg v. Massachusetts Bay Transportation Authority (SPR 20200054)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 14, 2020 SPR20/0054 Julie A Ciollo, Esq. Massachusetts Bay Transportation Authority 10 Park Plaza, Suite #7760 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, § lO(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 January 9, 2020 Shira Schoenberg requested "any available information on the nature of any MBTA fatalities .in 2018- 2019: Who was killed (ie worker, passenger, trespasser)? What were the circumstances behind each fatality (ie construction accident, pedestrian crossing, suicide etc)? Where did each fatality take place?" 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 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. SPR20/0054 Page 2 January 14, 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 publkrecord 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 pmi 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 petition dated January 9, 2020, the Authority request~ 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 personal information under Massachusetts General Laws, Chapter 4, Section 7(26)(c), investigatory information under Section 7(26)(£), and/or security-sensitive information pursuant to Section 7(26)(n).". The Authority explains that under Exemption ( c) the "above request calls for records that are likely to contain personal details about named individuals, which may include medical information" which if disclosed "may constitute an unwarranted invasion of personal privacy." Additionally with respect to redactions under Exemption (f), the records may contain information that "that ha[s] been recently created [and that] there may be responsive material that cannot be shared as an investigation may be open and ongoing." Lastly, the Authority asserts under Exemption (n) that "responsive records in this matter may contain information about safety protocols, plans or schematics, emergency preparedness, operational details, and other material that cannot be shared

Julie A. Ciollo, Esq. SPR20/0054 Page 3 January 14, 2020 publicly without jeopardizing public safety. These 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." Conclusion In light of the Authority's petition, lfind the Authority has met its burden to explain how the response could not be prudently completed without 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 Ms. Schoenberg and the Authority to continue to communicate to facilitate providing records efficiently and affordably. See G. L. c. 66, § 1O (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, Ms. Schoenberg has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior cou1i. See G. L. c. 66, § 10(d)(iv)(4), lOA(c). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Shira Schoenberg