William Marshall v. Massachusetts Department of Transportation (SPR 20220009)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 6, 2022 SPR22/0009 William J. Doyle, Esq. Records Access Officer Massachusetts Department of Transportation Office of the General Counsel Ten Park Plaza, Suite 3510 Boston, MA 02116 Dear Attorney Doyle: I have received your petition on behalf of the Massachusetts Department of Transportation (Department) requesting to “waive statutory limits to fees pursuant to 950 CMR 32.06(4)(g)” and permission to charge for time spent segregating or redacting requested records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Depatment furnished a copy of this petition to the requestor. Id. On December 16, 2021, the Department received a request from William Marshall requesting: 1. All professional development materials used to train former MDOT General Counsel Rachel Rollins, in the areas of equity, diversity, inclusion, and cultural sensitivity, including but not limited to PowerPoint presentations, handouts, and audio/video productions; 2. All complaints against and records related to disciplinary actions involving former MDOT General Counsel DA Rachel Rollins; 3. All conflicts of interest forms and financial disclosure forms submitted by former MDOT General Counsel Rachel Rollins; 4. All emails sent to and from former MDOT General Counsel Rachel Rollins containing any of the [listed] terms. The time frame for the records requested is January 1, 2011 to December 31, 2013. 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 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

William J. Doyle, Esq., RAO SPR22/0009 Page 2 January 6, 2022 (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 a municipality’s petition to allow the municipality 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. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality 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 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). 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)(iii); 950 C.M.R. 32.06(4).

William J. Doyle, Esq., RAO SPR22/0009 Page 3 January 6, 2022 Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Current Petition The Department states that it is necessary to perform redactions on the responsive records. In an December 31, 2021 email, the Department explains that “due to the substance of the request,” it believes the responsive records “will require redaction of records.” The Department asserts the information is necessary to be redacted pursuant to Exemptions (a), (b), (c) and (n) of the Public Records Law listed below: • that are “specifically or by necessary implication exempted from disclosure by statute” pursuant to Massachusetts General Laws, Chapter 4, Section 7(26)(a); • containing personnel rules and practices to the extent that proper performance of necessary governmental functions requires withholding pursuant to Section 7(26)(b); • containing personal information under Section 7(26)(c); • containing security-sensitive information pursuant to Section 7(26)(n), and those. The Department explains “in light of the fact the emails are to or from a prior General Counsel of MassDOT” the records are likely to contain “sensitive, privileged, or security- sensitive communications across the entire agency.” The Department further explained: Exemption (a) • With regard to records which must be exempted from disclosure by statute, your office has included attorney-client communications as information that is “required by law” to be segregated or redacted. . . . Exemption (c) • The Massachusetts Public Records Law allows redaction under Exemption (c) for records likely to contain personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy. . . . Exemption (n) • Specifically, 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. The Department stated that “[c]harging a fee in this matter is necessary because this request cannot be prudently completed without redacting information under these applicable exemptions and the attorney-client privilege. The fee is reasonable as it relates to a specific

William J. Doyle, Esq., RAO SPR22/0009 Page 4 January 6, 2022 redaction, and the fee is not designed to limit, deter or prevent access to public records; rather, it is meant to protect MassDOT from inadvertently revealing privileged materials, security sensitive material, as well as confidential personal information.” Conclusion In light of its petition, I find the Department 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 Department may assess a charge for the segregation and redaction of such exempt material. 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 this 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 is to provide a response to the requestor within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Marshall may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note the requestor 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: William Marshall; Judicial Watch