Staci Rubin v. Massachusetts Bay Transportation Authority (SPR 20211351)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 7, 2021 SPR21/1351 Julie A. Ciollo, Esq. Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: On May 27, 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 their petition to the requestor. G. L. c. 66, § 10(c). In this matter, on May 13, 2021, Attorney Staci Rubin requested five categories of records concerning the “... Red-Blue Connector.” Petitions to Assess Fees - Agencies 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 May 27th petition, the Authority seeks “...the Supervisor of Record’s permission to 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. SPR21/1351 Page 2 June 7, 2021 charge the requestor for time spent segregating and redacting records that are responsive to the request.” The Authority states, “[c]ertain parts of the request call for records likely to contain material that will require redaction under Exemption (d) to the Public Records Law, which protects ‘inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency.’ Specifically, responsive records may include documents that relate to policy positions that are being developed by the MBTA. This is especially the case where each request is targeted towards records concerning an ongoing project for which internal deliberations continue.” The Authority further expressed that “...certain parts of the request call for records likely to contain material that will require redaction under Exemption (n) to the Public Records Law, which protects records that ‘relate to internal layout and structural elements, security measures, emergency preparedness… or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation or other infrastructure located within the Commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (b) of section 10 of chapter 66, is likely to jeopardize public safety.’ Specifically, responsive records in this matter may contain information about the MBTA’s actual or planned infrastructure.” The Authority contends that “[b]ased on the above, the MBTA should be allowed to charge for this work. Charging a fee in this matter is necessary because Attorney Rubin’s 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 protect the MBTA from inadvertently revealing information concerning ongoing policy discussions and/or safety and security sensitive matters.” Conclusion In light of the Authority’s petition, 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). To the extent the responsive records contain the exempt information as described above, the Authority may assess a charge for the segregation and redaction of such exempt material. Further, this office encourages Attorney Rubin and the Authority to 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). Any fee estimate by the Authority must be in compliance with this determination, the Public Records Law, and its Access Regulations.

Julie A. Ciollo, Esq. SPR21/1351 Page 3 June 7, 2021 Please note, Attorney Rubin 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), 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Staci Rubin, Esq.