Matthew Rocheleau v. Massachusetts Department of Transportation - Office of the General Counsel (SPR 20210178)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 3, 2021 SPR21/0178 Julie Ciollo, Esq. Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: On January 26, 2021, this office received your petition on behalf of the Massachusetts Bay Transportation Authority (Authority) requesting permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, the Authority furnished a copy of its petition to the requestor, Matthew Rocheleau. G. L. c. 66, § 10(c). On January 11, 2021, Mr. Rocheleau requested “[a]ny/all disclosures of immediate family working in Massachusetts state government that were made by individuals who applied for employment with the Massachusetts Bay Transit Authority between Jan. 1, 2015 and present.” Mr. Rocheleau notes, “[t]his request is seeking records that show: the identity of the job applicant; the job they were applying for; the date they applied; the date they were hired; and all the information they completed on the section of their job application reserved for making such disclosures; however this request is not seeking records for any applicant who left this section of the application blank.” 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 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 Ciollo, Esq. SPR21/0178 Page 2 February 3, 2021 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 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 (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 January 26th petition, 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 “estimates it will take 2 minutes to perform the necessary redaction on each non-exempt, responsive application. Consistent with Mr. Rocheleau’s request, redaction time will only be required for records in which the applicant completed the relevant section of the application.” The Authority explains, “[a]ll responsive applications will require redaction of personal information that named individuals provide on applications for employment with the MBTA, such as driver’s license numbers and information useful in making employment decisions. Therefore, redaction would be appropriate under Massachusetts General Laws, Chapter 4, Section 7(26)(c) as well as G.L. c. 93H as it operates through Exemption (a) of the Public Records Law. Further, the applications will likely contain home addresses, personal email addresses and home telephone numbers of employees that can be redacted under Exemption (o).” Given the public interest served by limiting the cost of public access to the requested

Julie Ciollo, Esq. SPR21/0178 Page 3 February 3, 2021 records and the Executive Order requiring this information to be public, permission to charge for time spent segregating or redacting responsive records cannot be granted. See MA. Exec. Order No. 444 (Jan. 9, 2003). However, this does not preclude the Authority from charging for segregation and redaction that is required by law under Exemption (a). Conclusion This office encourages Mr. Rocheleau and the Authority to continue to communicate to facilitate providing records more efficiently and affordably. 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, § 10A. Sincerely, . ' - ' . - ~ - . Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau