Brian Cook v. Massachusetts Department of Transportation (SPR 20212106)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 24, 2021 SPR21/2160 William J. Doyle, Esq. Records Access Officer Massachusetts Department of Transportation 10 Park Plaza, Suite 4160 Boston, MA 02116 Dear Attorney Doyle: On August 18, 2021, this office received your petition on behalf of the Massachusetts Department of Transportation (Department) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor, Attorney Brian Cook. Id. In a letter dated August 4, 2021, Attorney Cook requested various records concerning the Department and its employees. 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). 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 J. Doyle, Esq. SPR21/2160 Page 2 August 24, 2020 Current Petition In its August 18th petition, the Department explains that “…there are likely to be a large number of responsive emails, in addition to their attachments and possible other communications, that are responsive to the request; there are both several applicable exemptions pursuant to the Public Records Law and records that contain an attorney-client privilege that will necessitate a withholding in whole, or in part, before they can be released. We are currently reviewing the responsive records; however, due to the substance of the request, we believe that many, if not all, of the responsive records will require redaction of records.” The Department states, “Attorney Cook previously submitted a similar request for records. Based on our experience with his previous similar request, we will need to review each responsive email for information exempt from disclosure under the Public Records Law, including the following: • deliberative discussions under Section 7(26)(d); • security sensitive information under 7(26)(n); • discussions that are privileged as attorney/client communications.” The Department cites Exemption (d) noting that “[r]edaction is allowed for information, under Massachusetts General Laws Chapter 4, Section 7(26)(d), relating to policy positions being developed by MassDOT; this exemption is intended to avoid the premature release of materials that could taint an ongoing deliberative process. MassDOT may be withholding the records [Attorney Cook] requested, in part, under this exemption if they pertain to negotiations and/or discussions which have not been completed.” Citing Exemption (n), the Department posits that “[r]edaction is also allowed for information, under Massachusetts General Laws Chapter 4, Section 7(26)(n), pertaining to records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which is likely to jeopardize public safety or cyber security.” Further, the Department contends that “…there are likely to be a significant number of emails that contain material privileged as attorney/client communications pursuant to Suffolk Construction Company v. Division of Capital Asset Management, 449 Mass. 444, 449-50 (2007). These records would contain communications to or from our attorneys and our clients during the course of their search for legal advice or opinion that were made in confidence, provided the privilege has not been waived. Therefore, MassDOT seeks the Supervisor’s permission to charge the requester for time spent segregating and redacting records that are responsive to the request.” Conclusion It is my determination that given the nature of the requested records and the explanation in its petition, the Department is permitted to charge for time spent segregating and redacting the

William J. Doyle, Esq. SPR21/2160 Page 3 August 24, 2020 requested records. When preparing a fee estimate for the provision of the requested records the Department is advised to provide a detailed explanation to the requestor detailing why the 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 also provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. The Department must provide a response to Attorney Cook within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Attorney Cook may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Attorney Cook 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), l0A(c). Sincerely, ~ ,, -er ./? II - - . - ~ . ·. Rebecca S. Murray Supervisor of Records cc: Brian Cook, Esq.