Harrison Rudolph v. Massachusetts Department of Transportation - Office of the General Counsel (SPR 20201360)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 17, 2020 SPR20/1360 William J. Doyle, Esq. Records Access Officer Massachusetts Department of Transportation 10 Park Plaza, Suite 4160 Boston, MA 02116 Dear Attorney Doyle: I have received your petition on behalf of the Massachusetts Department of Transportation (Department) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor. Id. In a letter dated August 7, 2020, Harrison Rudolph requested: 1. Requests received from U.S. Immigration and Customs Enforcement (ICE) seeking driver information, including requests for driver address information. 2. Agreements or memoranda of understanding signed with ICE or the U.S. Department of Homeland Security concerning access to driver information, including access to driver address information. 3. Policy documents, including guides, manuals, or other memoranda, containing procedures for using Nlets to share driver information, including driver address information.” Petitions 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). 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. SPR20/1360 Page 2 August 17, 2020 The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality 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 municipality 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 (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). Current Petition In its petition dated August 12, 2020, the Department “seeks the Supervisor’s permission to charge the requester for time spent segregating and redacting records that are responsive to the request.” The Department notes, “the Drivers Privacy Protection Act (18 U.S. Code § 2721) states, in part, ‘[a] State department of motor vehicles, and any officer, employee, or contractor thereof, shall not knowingly disclose or otherwise make available to any person or entity...personal information, as defined in 18 U.S.C. 2725(3), about any individual obtained by the department in connection with a motor vehicle record…’ Personal information includes information that identifies an individual, including an individual’s photograph, social security

William J. Doyle, Esq. SPR20/1360 Page 3 August 17, 2020 number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information.” The Department cites Exemption (c) stating “[t]he Massachusetts Public Records Law allows redaction under Exemption (c) for records likely to contain ‘personnel 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 Department cites exemption (f) stating “[r]edaction is also allowed for certain investigatory materials...This exemption allows records custodians to keep their investigative techniques confidential, encourages voluntary witnesses and informants to come forward without fear of exposure, and provides an incentive for investigators to be completely candid in recording their observations, hypotheses, and interim conclusions.” The Department cites exemption (n) stating “responsive records in this matter may contain information about safety protocols, plans or schematics, camera locations, emergency preparedness, 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. Part 1520.” The Department posits “MassDOT should be allowed to charge for this work. Charging a fee in this matter is necessary because this request cannot be prudently completed without redacting information under these applicable exemptions...Releasing the requested records without redaction would impede MassDOT’s security initiatives and obligations under Federal law, as well as jeopardize the safety, security and privacy of state/federal employees and the Commonwealth’s residents and visitors.” I find the Department 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, it is my determination that given the nature of the requested records and the explanation in its petition, the Department 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 Department is advised to provide a detailed explanation to the requestor detailing why the amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Department must also provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. The Department must provide a response to Mr. Rudolph within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr.

William J. Doyle, Esq. SPR20/1360 Page 4 August 17, 2020 Rudolph may appeal the Department’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), l0A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Harrison Rudolph