Iya Kazakevich v. Massachusetts Bay Transportation Authority - Office of the General Counsel (SPR 20201542)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 4, 2020 SPR20/1542 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 19, 2020, Iya Kazakevich requested “all HR and Procurement record related to the listed positions recruiting process and decisions.” 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. SPR20/1542 Page 2 September 4, 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 CMR 32.06(4). Current Petition In its petition dated August 28, 2020, the Authority seeks “the Supervisor of Record’s permission to charge the requestor for time spent segregating and redacting records that are responsive to the request.” The Authority expressed it has “identified numerous records that are responsive to this request – namely files containing applications for employment and evaluative materials concerning candidates for the four referenced positions.” The Authority notes, “[m]any records will require redaction of personal as well as personnel information in the form of ‘core categories of personnel information that are useful in making employment decisions regarding an employee.’” The Authority cites Exemption (c) starting, “[t]he above request calls for records that are likely to contain ‘employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee.’ Wakefield Teacher’s Ass’n v. School Comm. of Wakefield, 431 Mass. 792, 798 (2000). Therefore, redaction would be appropriate under Exemption (c).” The Authority posits “information contained in the responsive records, if made public,

Julie A. Ciollo, Esq. SPR20/1542 Page 3 September 4, 2020 would result in personal embarrassment to the named individuals, contains highly personal details, and is not otherwise available from other sources. There is no prevailing public interest requiring disclosure.” In a follow up email dated September 1, 2020, Ms. Kazakevich notes she is currently unable to pay fees and states, “[t]he reason of the request was not to embarrass any individual as MBTA referring, and to attach additional evidences why I was rejected to any other applied jobs (included union protected). Respective complaint against unfair termination already filled with Massachusetts Commission Against Discrimination. Therefore, I requested additional information.” I find the Authority 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 Authority is permitted to charge for time spent segregating and redacting the requested records. This office encourages Ms. Kazakevich and the Authority continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). 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 Ms. Kazakevich within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Kazakevich may appeal the Authority’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).

Julie A. Ciollo, Esq. SPR20/1542 Page 4 September 4, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Iya Kazakevich