Elizabeth Koh v. Massachusetts Bay Transportation Authority (SPR 20212530)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 7, 2021 SPR21/2530 Julie A. Ciollo, Esq. Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: On September 30, 2021, this office received your petition on behalf of the Massachusetts Bay Transportation Authority (Authority) requesting permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10 (d)(iv). As required by law, the Authority furnished a copy of its petition to the requestor, Elizabeth Koh. G. L. c. 66, § 10(c). On September 16, 2021, Ms. Koh requested: • records of all “summary ratings” submitted to the Federal Transit Administration for MBTA facilities, including condition assessments where applicable, from Jan. 1, 2018 to the present. • list of all structures managed, owned or maintained by the MBTA, including but not limited to bridges, stairs or walkways, and maintenance schedules for each. • any and all records related to the stairway connecting Old Colony Ave and Columbia Road near JFK/UMass, including but not limited to emails, incident or inspection reports, and work orders from Jan. 1, 2019 through Sept. 16, 2021. 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 (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). 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

Julie Ciollo, Esq. SPR21/2530 Page 2 October 7, 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 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 30th petition, the Authority seeks “…the Supervisor’s permission to charge the requester for time spent segregating and redacting records that are responsive to the request.” Specifically, the Authority contends that “…the categories of records sought by Ms. Koh are likely to contain information that is protected under Exemptions (d), (f) and (n) to the Public Records Law.” The Authority “…estimates it will take 1-2 minutes to perform the necessary redaction on each non-exempt, responsive communication and each page of non-email responsive records.” The Authority states, “[c]ertain parts of the request call for records likely to contain material that will require redaction under Exemption (d) to the Public Records Law, which protects ‘inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency.’ Specifically, responsive records may include documents that relate to policy positions that are being developed by the MBTA. This is especially the case where each request is targeted towards records concerning an ongoing incident and investigation that may involve policy discussions by MBTA officials.” With respect the Exemption (f), the Authority assert that “[c]ertain parts of the request also call for records likely to contain material that will require redaction under Exemption (f) to the Public Records Law, which protects ‘investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.’ Many categories of records requested relate either directly or indirectly to a recent incident which is the subject of an ongoing investigation by the MBTA and other law enforcement agencies.” In addition, “certain parts of the request call for records likely to contain material that will require redaction under Exemption (n) to the Public Records Law, which protects records that ‘relate to internal layout and structural elements, security measures, emergency preparedness… or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation or other infrastructure located within the Commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (b) of section 10 of chapter 66, is likely to jeopardize public safety.’ Specifically, responsive records in this matter may contain information about the MBTA’s actual or planned infrastructure. These records may

Julie Ciollo, Esq. SPR21/2530 Page 3 October 7, 2021 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.” Conclusion It is my determination that the Authority is permitted to charge for time spent segregating and redacting the requested records. To the extent the responsive records contain the exempt information as described above, the Authority may assess a fee for segregation and redaction. Please note, Elizabeth Koh 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, § 10A. Sincerely, Rebecca S. Murray Supervisor of Records cc: Elizabeth Koh