Meghan Portfolio v. Massachusetts Department of Transportation (SPR 20211788)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 23, 2021 SPR21/1788 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 July 1, 2021, Meghan Portfolio requested “records for documents and emails regarding the Transportation and Climate Initiative (TCI) cap and invest program” from September 2019 to the present. Petitions to Assess Fees 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). 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. SPR21/1788 Page 2 July 23, 2021 Current Petition In its July 16, 2021 petition, the Department “seeks the Supervisor’s permission to charge the requester, if necessary, for time spent segregating and redacting records that are responsive to the request.” The Department indicated, “due to the substance of the request, we believe that many, if not all, will require redaction of records…” citing Exemptions (a), (b), (d), (n) and privileged attorney-client communications. The Department stated, “responsive emails are likely to contain passwords and/or access codes for meetings and/or server and/or cloud-based storage locations that would be exempt under Massachusetts General Laws, Chapter 4, Section 7(26)(b).” The Department explained, “[r]edaction under Exemption (d) is intended to avoid the premature release of materials that could taint an ongoing deliberative process. MassDOT may need to withhold all or part of certain emails as the Transportation and Climate Initiative is an ongoing deliberation both inter and intra-agency involving several states and the District of Columbia and may pertain to negotiations and/or discussions which have not been completed.” The Department further explained “[r]edaction pursuant to Exemption (n) 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.” The Department indicated that “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.” Conclusion 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. Further, this office encourages Ms. Portfolio and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § --- 10(b)(vii)(a municipality or 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 municipality or agency to produce records sought more efficiently and affordably).

William Doyle, Esq. SPR21/1788 Page 3 July 23, 2021 When preparing a fee estimate for the provision of the requested records, the Department is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Department must provide a response to Ms. Portfolio within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Sincerely, Rebecca S. Murray Supervisor of Records cc: Meghan Portfolio