Adam Vaccaro v. Massachusetts Bay Transportation Authority (SPR 20200497)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 13, 2020 SPR20/0497 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, § lO(d)(iv); 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 28, 2019, Adam Vaccaro requested "[r]ecords of minutes from meetings between the MBTA and CRRC regarding new Red and Orange Line cars between 12/1/2019 and 2/28/20," Petitions regarding fees A 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, § 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 )an y 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. SPR20/0497 Page2 March 13, 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, § 10( 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 March 10, 2020, petition the MBTA seeks "to waive statutory limits to fees pursuant to 950 CMR 32.06(4)(g)." The MBTA indicates that is has "identified hundreds of pages of records that are responsive to this request and has determined that these records contain security-sensitive information pursuant to Section 7(26)(n). The MBTA explains "responsive records in this matter may contain information about structural elements and vulnerabilities, plans or schematics, stability considerations, operational details, and other material that cannot be shared 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. Paii 1520. Specifically, the records contain sensitive details concerning MBTA rail cars and infrastructure that are not suitable for public dissemination." The MBTA concludes by explaining that charging a fee is necessary because the "request

Julie A. Ciollo, Esq. SPR20/0497 Page 3 March 13, 2020 cannot be prudently completed without redacting information under Exemption (n). The fee is reasonable as it relates to a spedfic 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. Releasing the requested records without redaction would impede the MBTA's security initiatives and obligations under Federal law, as well as jeopardize the safety and security 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, § lO(d)(iv). Conclusion In light of the MBTA's petition, 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, § lO(d)(iv). To the extent the responsive records contain statutorily exempt information, the MBTA may assess a charge for the segregation and redaction of such exempt material. 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: Adam Vaccaro