Collin Dias v. Massachusetts Department of Transportation (SPR 20201236)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 5, 2020 SPR20/1236 William J. Doyle, Esq. Records Access Officer Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza Suite 3910 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Colin Dias appealing the response of the Massachusetts Department of Transportation (MassDOT) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on March 4, 2020, Mr. Dias requested records from January 2016 through November 2019, including: • “All [t]oll payments made by any owner/operator of any vehicle with the license plate Numbers of M1835 and M1803; • Any [t]oll invoices sent out to any owner/operator of any vehicle with the license plate numbers of M1835 and M1803; • Any record of toll violations made by any owner/operator of any vehicle with the license plate numbers of M1835 and M1803; • Any record of accidents where an involved vehicle had the license plate number of M1835 and M1803…” Previous Appeal This request was the subject of a previous appeal. See SPR20/1112 Determination of the Supervisor of Records (August 5, 2020). In my August 5th determination, I found that MassDOT had not met its burden of specificity in responding to the request, and withholding all of the records requested under G. L. c. 6C, § 13(a) and 700 C.M.R. 7.05(7), operating through Exemption (a). Specifically, MassDOT did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under Exemption (a). I ordered MassDOT to provide Mr. Dias with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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

William J. Doyle, Esq. SPR20/1236 Page 2 August 5, 2020 On July 22, 2020, MassDOT provided a response to Mr. Dias, including a fee estimate. Unsatisfied with MassDOT’s response, Mr. Dias petitioned this office and this appeal, SPR20/1262, was opened as a result. Fee estimate - agencies 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 4 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). MassDOT’s July 22nd fee estimate In its July 22nd response, MassDOT provided a link to category four of the request, which included a fee estimate of $20 “to cover the search/processing costs.” In his July 22nd appeal, Mr. Dias states “I ask that this office order MASSDOT to provide me any responsive records relative to paragraph 4 of my records request without a fee because I was not provided a fee estimate within 10 business days, and even if I was, the 20 dollar fee would not be reasonable to the Public Records Law.” Based on the MassDOT’s July 22nd fee estimate, I find MassDOT has not met its burden in explaining why more than fours hours of time is required to produce the records. See G. L. c. 66; § 10(d)(ii). It is unclear how many hours were allocated for “search/processing costs” in producing the responsive records. MassDOT must provide more detail regarding the tasks and the amount of time undertaken for each task. Further, based on Mr. Dias’s appeal, it is unclear if MassDOT provided a response within 10 days of receipt of the request in compliance with G. L. c. 66, § 10(b)(viii).

William J. Doyle, Esq. SPR20/1236 Page 3 August 5, 2020 Exemption (a) In its July 22nd response, MassDOT states “[i]n response to your appeal relative to the toll records you have requested in Paragraphs 1-3, above, we must continue to deny access to these records as they are exempt was public records under Massachusetts General Laws Chapter 4, Section 7(26)(a). This exemption provides that records are exempt from disclosure if they are “specifically or by necessary implication exempted from disclosure by statute”. In this case, the statute in question is Massachusetts General Laws Chapter 6C, Section 13(a), as well as 700 CMR 7.05(7); we do not have any ability to provide these records without a subpoena or court order.” Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. G. L. c. 6C, § 13(a) – Toll roads, bridges and tunnels; authority to collect tolls… G. L. c. 6C, § 13(a) states, in part: …[t]he department shall maintain the confidentiality of all information including, but not limited to, photographs or other recorded images and credit and account data relative to account holders who participate in its electronic toll collection system. Such information shall not be a public record under clause Twenty-sixth of section 7 of chapter 4 or section 10 of chapter 66 and shall be used for enforcement purposes only with respect to toll collection regulations. An account holder may, upon written request to the department, have access to all information pertaining solely to the account holder…

William J. Doyle, Esq. SPR20/1236 Page 4 August 5, 2020 G. L. c. 6C, § 13(a). 700 C.M.R. 7.05(7) – Confidentiality of records MassDOT also cites 700 C.M.R. 7.05(7) as support to withhold all the requested records. This regulation states: MassDOT shall maintain the confidentiality of all information including, but not limited to, photographs or other recorded images and credit and account data relative to Account Holders who utilize its EZDriveMA toll collection system. MassDOT shall maintain procedures consistent with M.G.L. c. 66A. For purposes of 700 CMR 11.06(7), all EZDriveMA customers, including customers of another agency or entity that may have toll collection reciprocity with MassDOT, are considered Account Holders. 700 C.M.R. 7.05(7). A review of the Regulations finds that EZDriveMA is defined as, “a cashless, automated system installed on or operating with respect to the Massachusetts Turnpike, MHS, a way, or at other MassDOT owned or MassDOT approved facilities for the purpose of collecting tolls, fares, fees, fines or other transactions as determined by MassDOT. The EZDriveMA system consists of E-ZPass MA and Pay-By-Plate.” 700 C.M.R. 7.02 In its July 22nd response MassDOT does not provide any additional support to withhold the records pursuant to Exemption (a). MassDOT is reminded that Mr. Dias requested “records of accidents, citations/warnings, and toll violations pertaining to the two identified license plates.” It is unclear how these records fall under G. L. c. 6C, § 13(a) and 700 C.M.R. 7.05(7). Further, MassDOT’s July 22nd response does not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under Exemption (a). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). MassDOT’s July 22nd response has not met its burden of specificity in responding to the request and withholding all of the records requested under G. L. c. 6C, § 13(a) and 700 C.M.R. 7.05(7) as this statute and regulation operates through Exemption (a). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). MassDOT must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). Conclusion Accordingly, MassDOT is ordered to provide Mr. Dias with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as

William J. Doyle, Esq. SPR20/1236 Page 5 August 5, 2020 practicable. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Collin Dias