Colman Herman v. Massachusetts Port Authority (SPR 20212396)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 1, 2021 SPR21/2396 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.” Previous appeal This request was the subject of a previous appeal. See SPR21/2092 Determination of the Supervisor of Records (September 1, 2021). In my September 1st determination, I directed the Authority to provide further explanation regarding its fee estimate. Accordingly, I ordered the Authority to provide Mr. Herman with a supplemental response. The Authority provided a response on September 16, 2021. Unsatisfied with the Authority’s response, Mr. Herman petitioned this office and this appeal, SPR21/2396, 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). 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 SPR21/2396 Page 2 October 1, 2021 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 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 September 16th response In its September 16, 2021 response, citing Exemption (c), the Authority states “Massachusetts courts have held that such information is ‘absolutely exempt from mandatory disclosure where the files or information are of a personal nature and relate to a particular individual.’ Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). See also Globe Newspaper Co. v. Exec. Office of Admin. & Fin., 2013 Mass. Super. LEXIS 2947, at *44-*45 (upholding redaction of information in separation, severance, transition, or settlement agreements where the requested information ‘trenches upon…core ‘personnel information’).” The Authority further explains, “[a]s there are approximately 150 responsive documents, they must each be reviewed to determine whether they contain personnel or medical information or other information relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of privacy, and if so, making appropriate redactions. Public entities may assess the costs related to segregation and redaction when such segregation or redaction is required by law, as it is here. G.L. c. 66 § 10(d); 950 C.M.R. 32.07(2)(d).” Further, the Authority states that it “. . . conservatively estimated that it will take five hours of staff time to collect, compile, and reproduce responsive documents, followed by 25 hours of staff time to review such documents to determine whether they contain personnel, medical, or other information relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of privacy. The conservative estimate anticipates Massport staff reviewing, segregating, and redacting (where necessary) approximately six agreements per hour.” Based on the Authority’s response, it remains unclear how the Authority requires 5 hours to “collect, compile, and reproduce documents[.]” As such, the Authority must provide further details regarding the tasks involved in producing the records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Additionally, the Authority’s fee estimate indicates that it requires “. . . 25 hours of staff time to review such documents to determine whether they contain personnel, medical, or other information relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of privacy.” In my September 1st determination, I indicated 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

Christina Gibson SPR21/2396 Page 3 October 1, 2021 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). Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records. See 950 C.M.R. 32.06(4)(g). Where the redaction is not required by law, I find the Authority may not assess a fee for redacting these records. Also, although the Authority states that it would be “. . . reviewing, segregating, and redacting (where necessary) approximately six agreements per hour[,]” it is not clear how many pages there are in each agreement and how many minutes per page the Authority requires to review the responsive records. The Authority must clarify these issues. 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