Taylor Dolven v. Massachusetts Bay Transportation Authority (SPR 20213089)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 29, 2021 SPR21/3089 Julie A. Ciollo, Esq. Records Access Officer 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) 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. G. L. c. 66, § 10(d)(iv). In a letter dated November 8, 2021, Taylor Dolven requested records concerning an identified individual from June 1, 2021 to present. 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). 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 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. SPR21/3089 Page 2 November 29, 2021 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 petition dated November 22, 2021, the Authority seeks “…permission to charge for segregating and redacting this information.” The Authority explains, “…the responsive emails will contain communications containing either attorney-client privileged material and/or discussions of policy positions being developed by the MBTA.” Citing Exemption (d), the Authority notes the “…request calls 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.” The Authority explains “[t]he emails sought by Ms. Dolven will also contain numerous attorney-client communications concerning legal advice sought and given between MBTA personnel and MBTA counsel. The MBTA has not waived the privilege concerning these communications. Communications between MBTA personnel and counsel, concerning legal advice, are protected from public disclosure under the attorney client privilege. See Suffolk

Julie, Ciollo, Esq. SPR21/3089 Page 3 November 29, 2021 Construction Co., Inc. v. Div. of Capital Asset Management, 449 Mass. 444, 448-52 (2007).” 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.” Further, the Authority contends that it “…should be allowed to charge for this work. Charging a fee in this matter is necessary because Ms. Dolven’s request cannot be prudently completed without redacting information under these applicable exemptions.” Conclusion In light of the Authority’s petition, I find the Authority has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the Authority may assess a charge for the segregation and redaction of such exempt material. Please note, Ms. Dolven 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: Taylor Dolven