Jonathan Wells v. Massachusetts Bay Transportation Authority (SPR 20212379)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 22, 2021 SPR21/2379 Attorney Julie Ciollo Massachusetts Bay Transportation Authority 10 Park Plaza Suite #7760 Boston, MA 02116 Dear Attorney Ciollo: I have received your petition on behalf of the Massachusetts Bay Transportation Authority (Authority/MBTA) 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 Authority furnished a copy of this petition to the requestor, Mr. Jonathan Wells. Id. In a letter dated September 1, 2021, Mr. Wells requested “[a]ll records related to bus, train and trolley operators terminated for safety violations from January 1, 2019, to the present” and “[a]ll back to work agreements, reinstatement orders or other-named records given to bus, train and trolley operators terminated from January 1, 2019, to the present which allowed said operators to resume their positions with the MBTA.” 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. 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

Attorney Ciollo SPR21/2379 Page 2 September 22, 2021 G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. 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 In its September 15, 2021 petition, the Authority requests it “be allowed to charge for… redaction work.” The Authority explains that they have “denied [Mr. Well’s] request in its entirety based on the provisions of Exemption (c) to the Public Records Law,” due to the fact “that the categories of records sought by Mr. Wells are personnel files or information relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” However, the Authority explains that “[i]n the event that [this] analysis changes, the MBTA [has submitted] this petition simply to preserve its right to charge for making redactions under Exemption (c).” The Authority states that “[c]harging a fee in this matter would be necessary because, in the event that the MBTA releases records, Mr. Wells’ request cannot be prudently completed without redacting information under Exemption (c).” Further, the Authority states that “[t]he fee

Attorney Ciollo SPR21/2379 Page 3 September 22, 2021 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 confidential personnel and personal information. Releasing the requested records without redaction would impede the MBTA’s role as an employer and jeopardize the privacy of its employees.” Conclusion The Authority 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 Authority 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 Authority must also provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. The Authority must provide a response to Mr. Wells within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Wells may appeal the Authority’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Mr. Wells 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. Jonathan Wells