Shira Schoenberg v. Massachusetts Bay Transportation Authority (SPR 20200294)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 19, 2020 SPR20/0294 Julie A. Ciollo, Esq. Records Access Officer 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 (MBTA) requesting permission for a waiver of statutory limits on fees that may be assessed in responding to a request. G. L. c. 66, § 10( 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 February 13, 2020, Shira Schoenberg requested "a copy of all police reports stemming from MBTA-related fatalities in FY18 and FY19." 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). See G. L. c. 66, § IO(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. 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 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. SPR20/0294 Page 2 February 19, 2020 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, § 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.M.R. 32.06(4). Current Petition In its February 14, 2020 petition the MBTA seeks "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 pursuant to Massachusetts General Laws, Chapter 4, Section 7(26)(c), investigatory information under Section 7(26)(f), and/or security-sensitive information pursuant to Section 7(26)(n)." The MBTA explains "[t]he above request calls for records that are likely to contain personal details about named individuals, which may include medical information." Additionally, the MBTA explains that "[c]e1iain parts of the request calls for records likely to contain investigatory information that will require redaction under Exemption (f) ... As the request seeks records that have been recently created, there may be responsive material that cannot be shared as an investigation may be open and ongoing." Further, the MBTA explains "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 publicly without jeopardizing public safety. These records may also contain Sensitive

Julie A. Ciollo, Esq. SPR20/0294 Page 3 February 19, 2020 Security Information or information that, if publicly released, would be detrimental to transportation security." 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 both security-sensitive material, as well as confidential personal information. Releasing the requested records without redaction would impede the MBTA's security initiatives and obligations under Federal law, as well as jeopardize the safety, security and privacy of its employees and the Commonwealth's residents and visitors." 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 MBT A 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 MBT A must provide a response to Ms. Schoenberg within five business days ofreceipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Schoenberg 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: Shira Schoenberg