Colman Herman v. Massachusetts Bay Transportation Authority - Office of the General Counsel (SPR 20200179)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords Febmary 4, 2020 SPR20/0179 Julie A. Ciollo, Esq. Records Access Officer Massachusetts Bay Transpmiation 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 (MBTA) requesting permission for a waiver of statutory limits on fees that may be assessed in responding to a request. G. L. c. 66, § lO(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the MBTA furnished a copy of this petition to the requestor. G. L. c. 66, § lO(d)(iv). On January 24, 2020, Colman Herman requested "any and all settlement agreements, exit agreements, severance agreements, separation agreements, and/or the like executed with former employees of the Massachusetts Bay Transportation Authority. This is for the period January 1, 2017 to December 31, 2017." Petitions regarding 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). 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, § 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, § 1O (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. SPR20/0179 Page 2 February 4, 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 paiiicular 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, § 1O (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 January 30, 2020 petition, the MBTA requests "to waive statutory limits to fees pursuant to 950 CMR 32.06(4)(g)." The MBTA indicates 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 Section 7(26)(c)." The MBTA explains "[t]he request calls for records likely to contain personal and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy." The MBTA concludes by explaining that charging a fee is necessary because the "request cannot be prudently completed without redacting information under these applicable exemptions. The fee is reasonable as it relates to a specific redaction, and the fee is not designed to limit, deter or prevent access to public records; Rather, it is meant to protect the MBTA from inadvertently revealing confidential personal information. Releasing the requested records

Julie A. Ciollo, Esq. SPR20/0179 Page 3 February 4, 2020 without redaction would impede the MBTA's role as an employer and jeopardize the privacy of its employees." I find the MBTA has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10( d)(iv). Conclusion Accordingly, given the nature of the requested records and the explanation in its petition, the MBTA is permitted to charge for time spent segregating and redacting the requested records. When preparing a fee estimate for the provision of the requested records the MBTA is advised to provide a detailed explanation to the requestor detailing why this amount of time is necessary. See G. L. c. 66, § lO(d)(iv) (requiring the amount of the fee must be reasonable). The MBTA must also provide the hourly rate being .used and explain why it is that of the lowest paid employee with the necessary skill. The MBTA shall provide a response to Mr. Herman within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Herman may appeal the MBTA's fee estimate within ninety days. See 950 C.M.R. 32.08(1). 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), lOA(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman