Kathy Curran v. Massachusetts Bay Transportation Authority (SPR 20220970)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 2, 2022 SPR22/0970 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 (MBTA) 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 MBTA furnished a copy of this petition to the requestor, Kathy Curran. Id. In a letter dated April 11, 2022, Ms. Curran requested: -A copy of all data reflecting the number of reports of doors malfunctioning on Red Line cars since January 1, 2018. Ms. Curran states, “[t]he data should include but not be limited to date of malfunction, location of train at time of malfunction, car number of malfunction, whether or not the malfunction led to injury or death and cause.” 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

Julie A. Ciollo, Esq. SPR22/0970 Page 2 May 2, 2022 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. 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 dated April 26, 2022, the MBTA states: “The MBTA does not currently possess a listing of the requested information, so a complete response will include separate records that contain information about malfunctioning doors on Red Line cars. Due to the broad nature of the request, the MBTA expects that numerous responsive records will contain personal and/or medical information about named individuals or safety/security-sensitive information about MBTA infrastructure. Therefore, the MBTA must expend time redacting this information

Julie A. Ciollo, Esq. SPR22/0970 Page 3 May 2, 2022 that is protected from disclosure under Massachusetts General Laws, Chapter 4, Sections 7(26)(c) and (n). Under exemption (c), redaction is allowed 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.’ See Worcester Telegram & Gazette Corp., 436 Mass. 378, 386 (2002). Therefore, redaction would be appropriate under Exemption (c)… The MBTA believes that responsive records may require redaction of security-sensitive information pursuant to Massachusetts General Laws, Chapter 4, Section 7(26)(n). This is especially the case where responsive records may include sensitive details about MBTA infrastructure, safety protocols, or other safety or security-sensitive details that are not suitable for public dissemination. The Massachusetts Public Records Law allows redaction under Exemption (n) 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 safety protocols, plans or schematics, emergency preparedness, operational details, and other material that cannot be shared publicly without jeopardizing public safety.” 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 fee for the segregation and redaction of such exempt material. Conclusion Accordingly, I find that 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. Curran 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).

Julie A. Ciollo, Esq. SPR22/0970 Page 4 May 2, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Kathy Curran