Staci Rubin v. Massachusetts Department of Transportation (SPR 20202305)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 1, 2020 SPR20/2305 William 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 your petition on behalf of the Massachusetts Department of Transportation (Department) requesting permission to charge for time spent segregating or redacting responsive records under G. L. 66, § 10(d)(iv). As required by law, the Department furnished a copy of their petition to the requestor. G. L. c. 66, § 10(c). Specifically, on November, 26, 2020, the Conservation Law Foundation (CLF) and A Better City (ABC) jointly submitted the following request: 1. All records indicating or reflecting the list of agencies and agency employee contact information that are designated as Cooperating Agencies and Participating Agencies as defined in 23 U.S.C. § 139 to undertake Concurrence Point #2 and Concurrence Point #3 under the One Federal Decision process. 2. All records indicating or reflecting the dates when Cooperating Agencies and Participating Agencies met, including meeting minutes, video recordings, and attendance lists between March 1, 2020 and November 6, 2020. 3. All records indicating or reflecting the dates when Lead Agencies, Cooperating Agencies, and Participating Agencies will meet to conduct Concurrence Point #3. 4. The full Matrix document including any main body of text together with any other attachments or enclosures apart from the “Attachment 1: Draft Throat Area Alternatives Analysis” dated October 1, 2020 that MassDOT/FHWA has already made public. 5. Construction staging concepts, drawings, sketches, and related information for each of the three build and for the no-build alternatives used to support the conclusions and statements of purported fact contained in the Matrix with respect to construction staging. 6. All records that contain analysis and calculations that support the Matrix statements of temporary and permanent impacts to wetlands and waterways for 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 Doyle, Esq. SPR20/2305 Page 2 December 1, 2020 each of the three build and no-build alternatives. 7. All records that contain the analysis and calculations used to support the Matrix statements of construction cost for each of the three build and for the no-build alternatives. 8. All records that relate to the cost and need for the MBTA South Side Temporary Maintenance Facility as summarized in the Matrix. The Matrix lists a cost of $300 million but provides no documentation regarding how that number was calculated nor clarity as to whether that facility will likely be built by the MBTA regardless of what MassDOT does with its I-90 Allston Multimodal Project. 9. All records indicating or reflecting the discussions between Lead Agencies, Cooperating Agencies, and Participating Agencies relating to Concurrence Point #2, including revisiting Concurrence Point #2 following MassDOT’s recommendation to FHWA to accept the Modified At-Grade Alternative. 10. Copies of all emails sent by MassDOT employees to FHWA employees between July 1, 2020 and November 6, 2020, with any of the following search terms in the subject line or body of the e-mail: “Allston”, “Concurrence Point”, “throat”, and “Charles River”. 11. Copies of all emails sent by FHWA employees to any Cooperating Agency employees pursuant to the One Federal Decision between July 1, 2020 and November 6, 2020, with any of the following search terms in the subject line or body of the e-mail: “Allston”, “Concurrence Point”, “throat”, and “Charles River”. 12. Copies of all emails sent by any employee of a Cooperating Agency or Participating Agency to FHWA or MassDOT between July 1, 2020 and November 6, 2020, with any of the following search terms in the subject line or body of the email: “Allston”, “Concurrence Point”, “throat”, and “Charles River”. Petitions to Assess Fees The Supervisor of Records (Supervisor) may approve a petition from an agency to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the agency to comply with the request. G. L. c. 66, § 10(d)(iv). 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 or to charge in excess of $25 an hour for the provision of public 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 the request is not 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

William Doyle, Esq. SPR20/2305 Page 3 December 1, 2020 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). Current Petition In its November 24, 2020, petition, 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 states “due to the substance of the request, we believe portions of the responsive records may require redaction of records…” The Department cites “personal information under Section 7(26)(c),” “policy positions being developed by an agency pursuant to Section 7(26)(d),” and “security-sensitive information pursuant to Section 7(26)(n).” The Department explains “[r]edaction under Exemption (d) is intended to avoid the premature release of materials that could taint an ongoing deliberative process. MassDOT may be required to withhold a portion of the records under this exemption, as they pertain to negotiations and/or discussions which may not be completed.” The Department explains in regard to its Exemption (n) claim “…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.”

William Doyle, Esq. SPR20/2305 Page 4 December 1, 2020 The Department further explains “[c]harging a fee in this matter is necessary because this request cannot be prudently completed without redacting information under these applicable exemptions. 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 both insulate potentially ongoing policy discussions, as well as protect MassDOT from inadvertently revealing security- sensitive material, as the release of records without redaction could impede MassDOT’s security initiatives and obligations under Federal law, as well as jeopardize the safety, security and privacy of the Commonwealth’s residents and visitors.” Given the public interest served by limiting the cost of public access to the requested records, I am declining to approve the Department’s petition to charge for segregation and redaction that is not required by law. Conclusion Accordingly, I decline to approve the Department’s petition to charge for segregation and redaction that is not required by law. Please note, however, this does not preclude the Department from charging for segregation and redaction that is required by law. This office encourages the requestors and the Department 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 Department must be in compliance with this determination, the Public Records Law, and its Access Regulations. Sincerely, Rebecca S. Murray Supervisor of Records cc: Staci Rubin, Esq. Glen Berkowitz, Esq.