Eric Hawkins v. Massachusetts Bay Transportation Authority (SPR 20201381)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 20, 2020 SPR20/1381 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 (Authority) 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 Authority furnished a copy of this petition to the requestor. Id. In a letter dated August 6, 2020, Attorney Eric L. Hawkins of WilmerHale requested four categories of records concerning the Authority. 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). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality or agency’s petition to allow the municipality or 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 municipality or agency to comply with the request. The Supervisor must 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. SPR20/1381 Page 2 August 20, 2020 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 14, 2020, the Authority expressed “the MBTA seeks the Supervisor’s permission to charge the requester for time spent segregating and redacting records that are responsive to the request.” The Authority notes, “due to the substance of the request, we believe that responsive records may require redaction of records containing policy development and/or security-sensitive information pursuant to Massachusetts General Laws, Chapter 4, Section 7(26)(d) and (n).” The Authority cites Exemption (d) stating “[c]ertain parts of the request call for records likely to contain material that will require redaction under Exemption (d) to the Public Records Law, which protects ‘inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency.’ Specifically, as the MBTA policies and communications about policies are requested, responsive records may relate to policy positions that are being developed by the MBTA.” The Authority cites Exemption (n) stating “responsive records in this matter may contain information about safety protocols, emergency preparedness, plans or schematics, emergency

Julie A. Ciollo, Esq. SPR20/1381 Page 3 August 20, 2020 preparedness, operational details, and other material that cannot be shared publicly without jeopardizing public safety.” The Authority further notes “[t]hese 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 Authority posits “[r]eleasing the requested records without any necessary 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.” In a letter dated August 19, 2020, Attorney Daniel W. Halston of WilmerHale states, “[a]s indicated in our August 6, 2020 public records requests, we request that the MBTA waive all related fees because the records requests are likely to contribute significantly to public understanding of the operations and activities of the government, and are not in the commercial interests of the requester. Specifically, the MBTA’s decision to temporarily suspend service during the May 31 demonstrations and protests has been the subject of public scrutiny and media coverage, as have decisions by other transportation systems’ decisions in similar circumstances in other cities.” Given the public interest served by limiting the cost of public access to the requested records, the Authority has not met its burden to explain that the fee represents an actual and good faith representation by the agency to comply with the request. See G. L. c. 66, § 10(d)(iv). Though the Authority has shown that the request could not be prudently completed without redaction or segregation, the Authority has not shown the fee is necessary; reasonable; or that the fee is not designed to limit, deter or prevent access to the requested records. Id. Therefore, permission to charge for time spent segregating or redacting responsive records cannot be granted. However, this does not preclude the Authority from charging for segregation and redaction that is required by law. Conclusion When preparing a fee estimate for the provision of the requested records the Authority 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 Authority must also provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. The Authority must provide a response to Attorney Hawkins within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Attorney Hawkins may appeal the Authority’s fee estimate within ninety days. See 950 C.M.R. 32.08(1).

Julie A. Ciollo, Esq. SPR20/1381 Page 4 August 20, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Eric L. Hawkins, Esq.