Taylor Dolven v. Massachusetts Bay Transportation Authority (SPR 20220511)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 4, 2022 SPR22/0511 Julie A. Ciollo, Esq. Assistant General Counsel Records Access Officer Massachusetts Bay Transportation Authority Ten Park Plaza Boston, MA 02116 Dear Attorney Ciollo: I have received your petition on behalf of the Massachusetts Bay Transportation Authority (MBTA) seeking 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, the MBTA furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On February 15, 2022, Taylor Dolven of the Boston Globe requested “any and all emails to sent or received by [three individuals] on Sunday, February 13 and Monday, February 14, 2022.” 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). It is my determination that this request was not made for a commercial purpose. 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 A. Ciollo, Esq. SPR22/0511 Page 2 March 4, 2022 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 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, the MBTA provides the following information: After a preliminary review of the records requested, it appears that topics discussed by the specified MBTA personnel, in the normal course of business, may require redaction of records containing policy development and/or security-sensitive information pursuant to Massachusetts General Laws, Chapter 4, Section 7(26)(d) and (n). . . . Certain parts of the request call for records that are likely to contain material that will require redaction under Exemption (d) to the Public Records Law. . . . The specified personnel are likely to be engaged in ongoing inter or intra-agency policy matters that will be reflected on the requested communications. Due to the recency of these communications, the policy discussions are not yet concluded. . . .

Julie A. Ciollo, Esq. SPR22/0511 Page 3 March 4, 2022 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. . . . Specifically, responsive records in this matter may contain information about safety protocols, emergency preparedness, plans or schematics, 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. In light of the MBTA’s petition, I find the MBTA 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 MBTA may assess a charge for the segregation and redaction of such exempt material. Conclusion Accordingly, to the extent the responsive records contain the exempt information described above, the MBTA may assess a fee for segregation and redaction. 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(c), (d)(iv)(4), § 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Julie A. Ciollo, Esq.