Colman Herman v. Massachusetts Port Authority (SPR 20212092)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 1, 2021 SPR21/2092 Christina Gibson Public Records Access Officer Massachusetts Port Authority One Harborside Drive, Suite 200S East Boston, MA 02128 Dear Ms. Gibson: I have received the petition of Colman Herman appealing the response of the Massachusetts Port Authority (Authority/Massport) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 2, 2021, Mr. Herman requested “. . . copies of any and all settlement agreements, severance agreements, separation agreements, exit agreements, and/or the like that Massport has executed with employees. This is for the period January 1, 2015 to the present.” The Authority responded on August 16, 2021, providing a fee estimate. Objecting to the fees, Mr. Herman petitioned this office and this appeal, SPR21/2092, was opened as a result. Fee estimates – 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 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 under a petition under 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

Christina Gibson SPR21/2092 Page 2 September 1, 2021 G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Authority’s August 16th fee estimate In its August 16, 2021 fee estimate, the Authority explains, “[t]he process of compiling, reviewing, segregating, redacting, and reproducing documents responsive to your request must be done by staff and attorneys. . . . Massport estimates that the process of compiling, reviewing, and preparing responsive documents for production to you will take 30 hours of employee time: 5 hours: collect, compile and reproduce documents [and] 25 hours: review, segregate, and redact documents[.]” The Authority states, “[n]ot including the first four hours of this work, Massport estimates that the time to reproduce and review responsive documents will cost $650 (26 hours of employee time). . . .” Although the Authority “. . . estimates that the process of compiling, reviewing, and preparing responsive documents for production . . . will take 30 hours of employee time[,]” it is unclear how the Authority requires 30 hours to produce responsive records. Particularly, it is not clear how many hours will be spent reviewing, segregating, redacting and preparing responsive records for production. Also, it is uncertain how the Authority requires 5 hours to “collect, compile, and reproduce documents[.]” As such, the Authority must provide further details regarding its fee estimate and the tasks involved in producing the records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Further, the Authority’s fee estimate includes “25 hours: review, segregate, and redact documents[.]” Please note that under the Public Records Law, a fee may 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). Based on the Authority’s response, it is unclear how redaction is required by law in this matter. Specifically, it is not clear what type of information is contained in the responsive records, and which statutes, if any, require redaction. I am not aware that the Authority has submitted a petition under G. L. c. 66, § 10(d)(iv). Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records; therefore, the Authority may not currently seek permission to assess fees for this request through a petition under G. L. c. 66, § 10(d)(iv). See 950 C.M.R. 32.06(4)(g). Consequently, I find the Authority must provide information about whether the responsive records contain information that is required by law to be segregated or redacted, as well as the applicable statutes, if any. Additionally, it is uncertain the number of records the Authority is looking to redact and the number of pages there are. It is also not clear how many minutes per page the Authority requires to review the responsive records. The Authority must clarify these issues. For the reasons discussed above, I find the Authority must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d).

Christina Gibson SPR21/2092 Page 3 September 1, 2021 Conclusion Accordingly, the Authority is ordered to provide Mr. Herman with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman