Emiliano Falcon-Morano v. Massachusetts Bay Transportation Authority (SPR 20202261)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 24, 2020 SPR20/2261 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 (MBTA) requesting permission for a waiver of statutory limits on fees that may be assessed in responding to a request. G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the MBTA furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). On November 3, 2020, Attorney Emiliano Falcon-Morano, on behalf of the American Civil Liberties Union of Massachusetts (ACLUM), requested 6 categories of records: “1. Manuals, policies, procedures, emails, and other records describing practices pertaining to how the MBTA collects information about riders and people in the vicinity of MBTA properties and assets… 2. Manuals, policies, procedures, and practices reflecting the security measures that the MBTA uses to store CharlieCard and video surveillance data. 3. Records pertaining to the MBTA’s video surveillance system… 4. All records pertaining to information sharing practices at the MBTA… 5. All records reflecting any video analysis capabilities at the MBTA, including but not limited to person and object tracking, facial recognition, and object and motion detection. 6. All records describing incidents of misuse or abuse of Charlie Card and/or video surveillance data.” Subsequent to the opening of this petition, Attorney Falcon-Morano sent an email to this office on November, 2020 that addresses the MBTA’s petition. Petitions regarding 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 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. SPR20/2261 Page 2 November 24, 2020 (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 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).

Julie A. Ciollo, Esq. SPR20/2261 Page 3 November 24, 2020 Current Petition In its November 18, 2020, petition 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 MBTA states it “is currently evaluating the above requests and preparing a response, including determining how certain broad requests might be modified to make a response more efficient and affordable. Due to the subjects identified in the requests, 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)(b), (d) and (n).” The MBTA explains “[n]umerous requests call upon the MBTA to provide manuals, policies, procedures, emails, and other records describing practices pertaining to MBTA security practices, data and cybersecurity matters and measures. These records may require redaction under Exemption (b) in order to safeguard the performance of these safety and security initiatives.” The MBTA further explains “…responsive records may include documents that relate to policy positions that are being developed by the MBTA. This is especially the case where several requests ask for MBTA policies and practices, as well as communications about policy matters.” The MBTA also explains “…responsive records in this matter may contain information about MBTA surveillance practices and data security and safety matters. 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 MBTA concludes by explaining that charging a fee is necessary because the “fee is reasonable as it relates to a specific redaction, and the fee is not designed to limit, deter or prevent access to public records. Rather, it is meant to protect the MBTA from inadvertently revealing policy development and security-sensitive material. Releasing 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 his November 9th response, Attorney Falcon-Morano contends “the public interest demands that the Petition be denied and that the MBTA should be encouraged to waive any fees.” Attorney Falcon-Morano explains “[o]btaining records pertaining to MBTA practices related to riders’ information furthers, serves, and protects the public interest in multiple ways…. the MBTA does not publish or otherwise make available to the public any records pertaining to how they collect, manage, store, and share this information… [w]ithout affordable access to records, such as the ones sought here, that show how this information is managed and shared, the full extent to which riders’ privacy is being infringed could possibly remain unknown and shielded from public view.” Attorney Falcon-Morano further contends “[i]n the instant case, the public interest and the need for transparency, accountability, and public confidence is especially acute: The MBTA has its own law enforcement body —the MBTA Transit Police, which continually shares information with the Boston Police Department and other law enforcement

Julie A. Ciollo, Esq. SPR20/2261 Page 4 November 24, 2020 agencies, see Commonwealth v. Zachary. The prompt and affordable availability of records is essential…” Attorney Falcon-Morano indicates “[t]he Fee Estimate of $6,775.00 is unreasonably high, …[t]his number both deters and prevents access to public records for individuals and non-profit organizations who operate on their behalf and in the interest of the public like ACLUM. Additionally, it is unclear how the MBTA derived this number (based on an estimated 15,000 records) as its response indicates that it has not yet searched for or located any responsive records. Further, the MBTA has not shown why this fee is necessary such that the request could not be prudently completed without it. Notably, the MBTA states that it will likely have to redact records pursuant to Exemption (n); however, as the Supreme Judicial Court has determined, Exemption (n) is an exceedingly narrow protection for records that would be useful to terrorists seeking to maximize damage, such as records depicting sensitive infrastructure. See PETA v. Dep’t of Agricultural Resources, 477 Mass. 280, 289-90 (2017). It does not apply here; indeed, it is difficult to imagine how the MBTA would be able to make the necessary showing that these requested records could further any terrorist action. Id. (the record custodian must provide ‘sufficient factual heft’ to show that a reasonable person would agree that a terrorist would find the records useful to maximize damage).” Given the public interest served by limiting the cost of public access to the requested records, I am declining to approve the MBTA’s petition to charge for segregation and redaction that is not required by law. Conclusion Accordingly, I decline to approve the MBTA’s petition to charge for segregation and redaction that is not required by law. Please note, however, this does not preclude the MBTA from charging for segregation and redaction that is required by law. This office encourages Attorney Falcon-Morano and the MBTA to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii) (an agency 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 to produce records sought more efficiently and affordably). Any fee estimate by the MBTA must be in compliance with this determination, the Public Records Law, and its Access Regulations. Sincerely, Rebecca S. Murray Supervisor of Records cc: Emiliano Falcon-Morano, Esq.