Adam Vaccaro v. Massachusetts Bay Transportation Authority (SPR 20200933)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 15, 2020 SPR20/0933 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, § 10(d)(iv). As required by law, the Authority furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On June 3, 2020 Adam Vaccaro submitted a request for records for “[a]ll fare evasion citations issued by MBTA Transit Police in 2018 and 2019, logged by location if possible.” 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, § 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, § 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. SPR20/0933 Page 2 June 15, 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, § 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, § 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 petition dated June 11th, the Authority indicates that “responsive records will require redaction of personal information in the form of license numbers and/or social security numbers.” Additionally, the Authority asserts, “[t]his information is protected from disclosure under M.G.L. c. 93H and 201 CMR 17.00 as they operate through Exemption (a) to the Public Records Law, as well as Massachusetts General Laws, Chapter 4, Section 7(26)(c).” Conclusion In light of the MBTA's petition, I find the MBTA 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 MBTA may assess a fee for segregation and redaction. Any fee estimate by the MBTA must be in compliance with this determination, the Public Records Law, and its Access Regulations. 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), 10A(c).

Julie A. Ciollo, Esq. SPR20/0933 Page 3 June 15, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Adam Vaccaro