Ryan Kath v. Massachusetts Department of Transportation (SPR 20212201)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 3, 2021 SPR21/2201 Mr. William Doyle, Esq. 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) 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, Mr. Ryan Kath. Id. In a letter dated August 18, 2021, Mr. Kath requested “a copy of the most recent detailed inspections of all transportation elements within the Metropolitan Highway Tunnel System. Please provide a copy of [the Department’s] Asset Management System.” Petition to Assess Fees 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 (Supervisor) under a petition under G. L. c. 66, § 10 (d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). 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. 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 this request was not made for a commercial purpose. 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

Mr. William Doyle, Esq. SPR21/2201 Page 2 September 3, 2021 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; 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. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). 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). Current Petition The August 27, 2021 petition states that 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 explains that “many, if not all, of the responsive records will require redaction[s]” of information that is ‘specifically or by necessary implication exempted from disclosure by statute’ pursuant to Massachusetts General Laws, Chapter 4, Section 7(26)(a),” or that “contain[s] security-sensitive information pursuant to Section 7(26)(n).” The Department states that the request “cannot be prudently completed without redacting information under these applicable exemptions,” and that “the fee is not designed to limit, deter or prevent access to public records; rather, it is meant to protect [the Department] from inadvertently revealing security sensitive material. Releasing the requested records without redaction would impede [the Department] security initiatives and obligations under Federal law, as well as jeopardize the safety and security of the Commonwealth’s residents and visitors.” The Department explains that Exemption (n) “exempts ‘records… the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of

Mr. William Doyle, Esq. SPR21/2201 Page 3 September 3, 2021 public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security.” The Department states that their “records custodian has determined that release of the records [Mr. Kath has] requested is likely to jeopardize public safety.” The Department specifies 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.” With respect to “records which must be exempted from disclosure by statue,” the Departments states that “these records are governed, in part, by Title 49, Part 15 of the Code of Federal Regulations as well as the policies and [procedures] of [the Department].” The Department notes that “[t]ransportation infrastructure has been identified by the United States Department of Homeland Security as a potential target for a terrorist attack and information relative to the vulnerability of critical transportation infrastructure is considered to be sensitive security information, not to be made available to the public.” The Department further explains that “since the purpose of inspection reports is to describe deficiencies, any deficiencies that may compromise the structural integrity of members should also be redacted” including “defect documentation and member location information in text, sketches, as well as photographs that have background features that may provide specific location references.” Conclusion It is my determination that, given the nature of the requested records, the Department is permitted to charge for time spent segregating and redacting the 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 Mr. Kath within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Kath may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Mr. Kath 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: Mr. Ryan Kath