Erin Fowler v. Massachusetts Department of Transportation (SPR 20210549)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 12, 2020 SPR21/0549 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). On March 1, 2021, Attorney Erin Fowler requested nine categories of records pertaining to facial recognition. 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 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 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. SPR21/0549 Page 2 March 12, 2021 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 March 5, 2021 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 indicates “due to the substance of the request, we believe that many, if not all, will require redaction of records…” citing Exemptions (a), (c), (d), (f), and (n). The Department further indicates “[w]ith regard to records which must be exempted from disclosure by statute, the Drivers Privacy Protection Act (18 U.S. Code § 2721) states, in part, ‘[a] State department of motor vehicles, and any officer, employee, or contractor thereof, shall not knowingly disclose or otherwise make available to any person or entity...personal information, as defined in 18 U.S.C. 2725(3), about any individual obtained by the department in connection with a motor vehicle record...’” The Department explains “[p]ersonal information includes information that identifies an individual, including an individual’s photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information.” The Department explains “MassDOT is withholding the following [categories of records, specific records or portions of records] under this exemption, as they pertain to negotiations and/or discussions which have not been completed.” With respect to its Exemption (n) claim, the Department explains “…responsive records in this matter may contain information about safety protocols, plans or schematics, camera locations, emergency preparedness, operational

William Doyle, Esq. SPR21/0549 Page 3 March 12, 2021 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.” 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 not designed to limit, deter or prevent access to public records; rather, it is meant to protect MassDOT from inadvertently revealing security-sensitive material, material relevant to investigations, as well as confidential personal information. Releasing the requested records without redaction would impede MassDOT’s security initiatives and obligations under Federal law, as well as jeopardize the safety, security and privacy of both law enforcement and the Commonwealth’s residents and visitors.” Given the public interest served by limiting the cost of public access to the requested records, permission to charge for time spent segregating or redacting responsive records cannot be granted. However, this does not preclude the Department from charging for segregation and redaction that is required by law under Exemption (a). 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 Attorney Fowler 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 Regulations. Sincerely, Rebecca S. Murray Supervisor of Records cc: Erin Fowler, Esq.