Mark DeCourcy v. Massachusetts Department of Transportation (SPR 20220252)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 8, 2022 SPR22/0252 William J. Doyle, Esq. Records Access Officer Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza Boston, MA 02116 Dear Attorney Doyle: I have received your petition on behalf of the Massachusetts Department of Transportation (MassDOT) requesting permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, MassDOT furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). Specifically, Mark DeCourcy requested the following: [1.] All MBTA and MADOT emails, invoices, and public procurement documents containing the word Houdini. [2.] All emails, records, and invoices related to the Compliance Plus investigation of Mark DeCourcy. 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). 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. SPR22/0252 Page 2 February 8, 2022 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 A municipality 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). Municipalities may not assess a fee for the first two hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities 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. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). 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). 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 In its February 2, 2022 petition, MassDOT states the following:

William J. Doyle, Esq. SPR22/0252 Page 3 February 8, 2022 Mr. DeCourcy is involved in litigation with the MBTA . . . and the requests made here are related to issues raised in this lawsuit. There was an agreed-upon discovery stay while a motion to dismiss was pending. It was understood that the stay included public record requests. However, on January 19, 2022 MassDOT was informed Mr. DeCourcy would not postpone responses to his public records requests. Therefore, it is [MassDOT’s] position that this fee petition is timely in light of the January 19th notification. Conclusion MassDOT submitted its petition on February 2, 2022, and the petition was received by this office on February 3, 2022. Where neither the original requests, nor the discovery stay agreement discussed above, were provided with MassDOT’s petition, it is unclear whether the petition was submitted within ten business days after receipt of the request. In light of the fact that MassDOT has not demonstrated it submitted a timely petition, permission to charge for time spent segregating or redacting responsive records cannot be granted at this time. 950 C.M.R. 32.06(4)(g). Sincerely, Rebecca S. Murray Supervisor of Records cc: Mark DeCourcy