Daniele Nudelman-McGonigle v. Massachusetts Department of Transportation (SPR 20220990)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 2, 2022 SPR22/0990 William J. Doyle, Esq. Records Access Officer Massachusetts Department of Transportation 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Doyle: I have received your petition on behalf of the Massachusetts Department of Transportation (Department) 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 Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). In a letter dated April 20, 2022, Daniele Nudelman-McGonigle requested: 1. Any and all documents pertaining to an incident involving an MBTA bus striking a pedestrian …in Metcalf Square, Winthrop, MA, on Wednesday, February 9, 2022 as are within the possession, custody, or control of the MassDOT, MBTA, or Massachusetts Transit Police, including, but not limited to, daily logs, recordings and/or transcripts of 911 calls, recordings and/or transcripts of any other telephone calls, turret tapes, incident reports, investigative reports, detail records, and videos and/or photographs the scene…or the driver of the bus. 2. Any and all documents pertaining to any incidents, accidents, or collisions involving the MBTA or Paul Revere Transportation, LLC, occurring in Metcalf Square, Winthrop, MA, as are within the possession, custody, or control of the Massachusetts State Police, including, but not limited to, daily logs, recordings and/or transcripts of 911 calls, recordings and/or transcripts of any other telephone calls, turret tapes, incident reports, investigative reports, and detail records for the period of January 1, 2017 to the present. 3. Any and all contracts or agreements by and between the MBTA or MassDOT with Paul Revere Transportation, LLC or any other vendor for the period of January 1, 2017 to the present. 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. SPR22/0990 Page 2 May 2, 2022 4. Any and all training materials provided to MBTA drivers or operators for the period of January 1, 2017 to the present. 5. Any and all route books, binders, or manuals available to MBTA drivers or operators at the garage that handles routes through Metcalf Square, Winthrop, Massachusetts for the period of January 1, 2017 to the 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). 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).

William J. Doyle, Esq. SPR22/0990 Page 3 May 2, 2022 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 27, 2022, the Department states the following: “Due to their nature as customer complaints/submissions, the MBTA often receives personal information about specifically named individuals with the submissions. Similarly, incident/investigative reports maintained by the MBTA often contain personal information about specifically named individuals. This may include financial information, private contact information, and other personal information that is not available from some other source. Therefore, the MBTA must expend time redacting this information that is protected from disclosure under Massachusetts General Laws, Chapter 4, Section 7(26)(c). A preliminary search of our records located over 120 potentially responsive submissions; this total does not include potentially responsive incident/investigative reports. 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 Department further contends that the “[i]nformation contained in the responsive records, if made public, would result in personal embarrassment to the named individuals, contains highly personal details, and is not otherwise available from other sources. There is no prevailing public interest requiring disclosure.” 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). Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition, the Department is permitted to charge for time spent segregating and redacting the requested records.

William J. Doyle, Esq. SPR22/0990 Page 4 May 2, 2022 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), l0A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Daniele Nudelman-McGonigle Noah Potash